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Kunz v. Utah Power & Light Co.

Citation: 6 ELR 20193
No. No. 74-1528, 526 F.2d 500/(9th Cir., 10/22/1975)

The Ninth Circuit, affirming a lower court's finding of negligence on the part of Utah Power, operator of the Bear River-Bear Lake water storage system, holds the company liable for flood damage to downstream property. Utah Power's assertion that it had no duty to control flooding must be rejected because the company had voluntarily undertaken flood control efforts in operating its storage system. Furthermore, downstream property owners reasonably relied on such flood control when they changed from crops able to withstand flooding to those unable to do so after the system was constructed. The court concluded that the unprecedentedly heavy spring runoff in 1971 and 1972, which destroyed the crops, was reasonably forseeable and that sufficient evidence was presented to support a finding that Utah Power breached its duty of flood control by not releasing some of the stored water earlier. Nor is liability precluded by Utah Power's holding flood easements on part of the flooded land, since these easements did not entitle the company to flood the lands unnecessarily.

Counsel for Plaintiffs-Appellees
Robert C. Huntley, Jr.
Racine, Huntley & Olson
P.O. Box 1391
Pocatello ID 83201
(208) 232-6101

Counsel for Defendant-Appellant
W. F. Merrill
Merrill & Merrill
Spaulding Bldg.
P.O. Box 991
Pocatello ID 83201
(208) 232-2286

Choy, J. for himself, Kilkenny & Goodwin, JJ.