Lester v. Mining Co.

stroyed before maturity, the labor of the farmer is not further directed to it, and he is free to embark in other profitable employment. To give the value of a matured and gathered crop would be to give compensation for labor never performed, and for an injury received." The Supreme Court of Colorado, in Colo. Con. L. & W. Co. v. Hartman, 5 Colo. App. 150, 38 Pac. 62, held: "The measure of damages for the destruction of growing crops by water from an irrigation ditch is the value of the crops in the condition they were at the time of the injury." So, in Lommeland v. St. P., M. & M. Ry. Co., 35 Minn. 412, 29 N. W. 119, it was said: "In such cases the general rule appears to be that the damages are to be estimated as of the time of the injury, and the measure of damages is compensation for the value of the crops in the condition they are in at that time." 3 Suth. Damages, sec. 1049; Gulf, C. & S. F. Ry. Co. v. Carter (Tex. Civ. App.) 25 S. W. 1023; Richardson v. Northrup, 66 Barb. 85; Handforth v. Maynard, 154 Mass. 414, 28 N. E. 348; Folsom v. Log-Driving Co., 41 Wis. 602; Seely v. Alden, 61 Pa. 302, 100 Am. Dec. 642; S. & E. T. Ry. Co. v. Joachimi, 58 Tex. 456; Gresham v. Taylor, 51 Ala. 505; Farr v. Griffith, 9 Utah 416, 35 Pac. 506; N. P. C. Irr. Co. v. Canal Co., 23 Utah 199, 63 Pac. 812; 15 Am. Cent. Digest, sec. 281, col. 2013; Little Schuylkill Nav. Co. v. Richards' Adm'r, 57 Pa. 142, 98 Am. Dec. 209.

2

The appellant also contends that the court erred in instructing the jury that they should allow interest on the damages assessed by them in favor of the plaintiffs from the date of the commencement of the action up to the date of the verdict. This contention appears to be well taken. The action was for a tort, and the damages were unliquidated, and this court, in Nichols v. Railroad Co., 7 Utah 510, 27 Pac. 693, which was an action for a tort, where the damages were unliquidated, and where the jury returned a verdict for so much damages, and so much for interest thereon, held "that there is no authority for the granting of in

Evans v. Mining Co.

terest in such a case." Under the doctrine of that case the instruction respecting interest was erroneous. As a new trial must be granted because of the errors already pointed out, we do not deem it important to discuss and decide the other questions presented herein, since the same questions may not again arise.

The judgment is reversed, with costs, and the cause remanded with instructions to the court below to grant a new trial. It is so ordered.

BASKIN, C. J., and MCCARTY, J., concur.

JOHN EVANS, Respondent, v. THE HIGHLAND BOY GOLD MINING COMPANY, and ROBERT T. WHITE, Appellants.

No. 1534. (76 Pac. 1135.)

(Decided April 16, 1904.)

Appeal from the Third District Court, Salt Lake County.-Hon. S. W. Stewart, Judge.

Action to recover damages to growing crops. From a judgment in favor of the plaintiff, the defendants appealed.

REVERSED ON AUTHORITY OF LESTER V. HIGHLAND BOY GOLD MINING COMPANY, 27 Utah 470.

lants.

Messrs. Sutherland, Van Cott & Allison for appel

Messrs. Henderson, Pierce, Critchlow & Barrette for respondent.

Evans v. Mining Co.

BARTCH, J.-This is an action to recover the sum of $4,402.59, as damages to growing crops and fruit trees, which the plaintiff alleges he sustained during the period from 1899 to 1902, through the operation, by the defendant, of the Highland Boy smelter from which, through its smokestack, were emitted smoke, gases and vapors deleterious to vegetation, and then carried by the winds to the plaintiff's farm, situate about onefourth of a mile southerly from the smelter, and deposited upon the trees and crops growing on said farm.

The plaintiff also sued for $650 damages, which he claims for physical annoyance and discomfort suffered by him in inhaling the smoke from the smelter.

At the trial the jury returned a verdict in favor of the plaintiff assessing his damages in the total sum of $4,094.66. Upon judgment being entered accordingly, the defendant appealed.

The appellant contends the court erred in charging the jury, as follows:

"The plaintiff in this case is entitled to recover only such damages to his crops of lucerne, potatoes, corn, wheat, and such things as are sued for, as they were worth at the time when destroyed or injured, and at the place where injured or destroyed. In other words, if they were injured or destroyed at or before the time of harvest in the different years, respectively, then in arriving at the damages, you must take the market value of such crops at the prices prevailing at the time of such harvest, or within a reasonable time thereafter.

You are instructed that if you find from the evidence that plaintiff has suffered damages to his lucerne crops for the years 1900 and 1901, in consequence of smoke issuing from the smelter of the defendant company, then in assessing the damages so sustained you should determine the fair and reasonable value of the crops at the time of their injury, and what their value would have been at that time in the absence of any such

State ex rel. v. Eldredge.

injury, and the difference, if any, represents the measure of damages which you should allow."

"If you find for plaintiff under the evidence, then upon the amount so found you should add interest thereon at the rate of 8 per cent per annum from the 26th day of February, 1902, and you are requested to separately state such item of interest in your verdict."

It will be noticed that the same questions of law here presented for decision were presented and determined in the case of Lester v. Highland Boy Min. Co. et al., 27 Utah 470, decided at the present term, in which case appeared a like state of facts. We, therefore, for our opinion herein, refer to that case, and, upon the authority of that case, this one must be reversed with costs, and the cause remanded with directions to the court below to grant a new trial. It is so ordered.

BASKIN, C. J., and MCCARTY, J., concur.

THE STATE OF UTAH ex relatione SALT LAKE CITY, a Municipal Corporation, Relator, v. BENJAMIN R. ELDREDGE, as County Assessor, and Another, Respondents.

No. 1550. (76 Pac. 337.)

1. Taxation: Statutory Construction: Intention.

In construing a constitutional provision the intention of the framers must prevail, whatever language may have been employed to express it.

3. Same.

In construing a particular section of a constitutional provision, the court may refer to any other section or provision to ascertain the object, purpose, and intention of the framers in adopting the section.

State ex rel. v. Eldredge.

5.

Same.

It is a rule of statutory and constitutional construction that the meaning of general words will be restricted when it is found necessary in order to carry out the intention of the lawmakers.

4. Same: Local Self-Government.

The principle that local authority shall manage and control local affairs permeates the whole system of American government, and the Constitution of Utah was framed with that principle in view.

2. Same: Assessment: Power of Legislature.

In the absence of a constitutional system of taxation and of constitutional restraint, the Legislature has absolute power to adopt any means it sees fit for the purpose of assessing property and raising revenue to defray governmental expenses.

7. Same: State Board of Equalization.

The Legislature has power to authorize the State Board of Equalization to assess, for revenue purposes, property situated partly in one county and partly in another, or operated in two or more counties.

6. Same: Assessment of Property Within County: Constitutionality of Statute.

Constitution, article 13, section 11, creates a State Board of Equalization, and also a similar board in each county, the duty of the State Board being to adjust and equalize the value of property among the several counties, and the duty of the county board to adjust and equalize the valuation of property within the county. It also provides that each board shall "also perform such other duties as may be prescribed by law." Article 8, section 5, provides that all legal business arising in any county shall be tried in such county, and article 13, section 5, forbids the Legislature to impose taxes for the purpose of any county, city or other municipality, but gives it power to vest in the corporate authorities thereof, respectively, the power to assess and collect taxes for all purposes of such corporation. Article 11, section 4, provides that the Legislature shall establish a system of county government uniform throughout the State, and by general laws provide for precinct and township organizations. Held, that Laws 1899, page 102, chapter 68, amending Revised Statutes 1898, section 2513, and providing that property and franchises owned by railroad and certain other companies must be assessed by the State Board of Equalization, in so far as it conferred power on