Melvin Griffeth and Lois D. Griffeth v. Utah Power & Light Company, a Corporation

The Griffeths own lands and are lessees of other lands in Franklin County, Idaho, through which the Bear River flows. The Utah Power & Light Company is engaged in the generation and sale of electric current in public service. The company has for more than twenty-five years maintained and operated plants and dams upon the Bear River in the manufacture of such electricity. Thereby, for that purpose, the waters have continuously been impounded, stored and released in accordance with the necessities of such an operation, causing the stream to fluctuate as it has flowed through its natural channel. One of the facilities of the company was the Oneida Power Plant and dam located some miles above the lands occupied by the Griffeths. Several other creeks flowed into the Bear River between the plant and these lands. During the winter, ice forms in this area and in the beds of the streams, including the Bear.

The Griffeths, as plaintiffs, claimed in their original complaint that a parcel of land owned by them was flooded by carelessness of defendant in discharging quantities of water, which overflowed its banks at a point where it passes through the lands of plaintiffs to their damage in…

(dissenting).

I think that if the majority opinion is allowed to stand it will be cited as authority for a rule relating to affidavits filed in support of motions for summary judgment which is contrary to much that has been said both in this and in other circuits.

To plaintiffs’ amended complaint alleging negligent operation of defendant’s dam (and which the court holds was a sufficient pleading), defendant filed an answer including therein as a “separate *674 and additional defense” allegations that the plaintiffs’ predecessors executed and delivered to defendant the release and easement, setting it forth in haec verba.

Then followed the motion for summary-judgment, accompanied by the Hale affidavit. Plaintiffs filed counter affidavits. Upon this motion the trial court ordered that summary judgment be granted only in- part, specifying that it appeared without substantial controversy “that plaintiffs are bound by the release and easement agreement. * * * The summary judgment will be denied subject to the above reservation.”

As the majority opinion indicates, it might have been better if the court had specified, in so many words, just what the issues remaining for trial were. I…

226 F.2d 661 Melvin GRIFFETH and Lois D. Griffeth, Appellants, v. UTAH POWER & LIGHT COMPANY, a corporation, Appellee. No. 13611. United States Court of Appeals Ninth Circuit. May 9, 1955. COPYRIGHT MATERIAL OMITTED Andersen & Andersen, Pocatello, Idaho, Newel G. Daines, Logan, Utah, L. Delos Daines, Salt Lake City, Utah, for appellants. Charles L. Ovard, Ray, Quinney & Nebeker, Paul H. Ray, Salt Lake City, Utah, A. L. Merrill, Pocatello, Idaho, for appellee. Before HEALY, POPE and FEE, Circuit Judges. JAMES ALGER FEE, Circuit Judge. 1 The Griffeths own lands and are lessees of other lands in Franklin County, Idaho, through which the Bear River flows. The Utah Power & Light Company is engaged in the generation and sale of electric current in public service. The company has for more than twenty-five years maintained and operated plants and dams upon the Bear River in the manufacture of such electricity. Thereby, for that purpose, the waters have continuously been impounded, stored and released in accordance with the necessities of such an operation, causing the stream to fluctuate as it has flowed through its natural channel. One of the facilities of the company was…