The ditch has been used for running this mill in the same place, just where it now runs, ever since 1864. Daniel Witter: The maintenance of the ditch makes the property of less value than it would be if the ditch was not there. This difference is from one-third to one-half. Cross-examination. This ditch has been maintained from 1865 to the present. I don't know what damage the ditch has done to the property since 1877. Permission was obtained from the city council to construct the ditch in 1865. I say this from having examined the record. Cook: I should judge that the maintenance of the ditch has diminished the value of this property for any use to which it may be reasonably put, for the past six years, from one-third to one-half. Cross-examination. I mean, if the ditch wasn't there at all, the property would be worth from one-third to one-half more than it is now. It is worth one-third more now, at the least, than it was in 1877. Redirect examination. The ditch has not increased this value, but all property has advanced. Plaintiff ests. TESTIMONY ON BEHALF OF DEFENDANTS. O. A. Whitemore: I was one of the original incorporators, in 1864, of this ditch. It was surveyed, and the work of construction contracted for, in March or April, 1864. Davis, one of the defendants: The ditch averages two feet and two inches in depth. Has not been increased in depth or width the last six years. From the east side of the ditch, in front of the premises in question, to the opposite side of the street, the distance is seventy feet, unobstructed. The sidewalk is ten feet and six inches between plaintiff's fence and the outside of the ditch bank, and fourteen feet and seven inches from his fence to the water edge. The entire sidewalk is just as it was when plaintiff bought the property, and has not been decreased in width in six years, nor in that time has the ditch damaged his property at all—has not been on his ground. He has never made any claim of damages until lately. He was friendly until a year ago. He asked permission to plant willows on the bank to keep up the bank. I told him I should like to have him do so. He said the ditch was no detriment to him. The first complaint about the ditch was about a year ago, when we had a little trouble. Property on the ditch is worth no less on that account now than it was six years ago, nor does the ditch affect it differently. There was not a house on that street, between the mill and the head of the ditch, eighteen years ago, when we took possession of the ditch. The first house was in 1870. The first settlers in this vicinity settled directly on the ditch. Some prefer to live on the ditch. They get lots cheaper than if the ditch was not there. The ditch is bridged by the city on each side of plaintiff. His foot-bridge spans the ditch now, just as it did several years ago, when he built it. Hon. H. P. H. Brownwell: Have lived opposite the mill for thirteen years. The ditch has been an inducement, on account of the water for irrigation and for trees, to many to buy property along it. The property in that neighborhood is a good deal higher in value now than in 1877. Don't know any reason why the ditch would depreciate the property now more than in 1877; the situation is unchanged. Witnesses Raynolds and Reynolds testified to nothing pertinent. Taylor: The ditch is a benefit to mine and other property along it for irrigation; don't know whether it's a benefit to plaintiff's property or not. Gen. Case: I think all the damage was done when the ditch was built, and not since 1877. From my knowledge of the ditch, (as former city councilman,) and from recent examination as engineer, I don't think the property of plaintiff has depreciated in value, on account of the ditch, since 1877; I don't say the ditch is no disadvantage to it. Terry: The price of property all along the ditch, in the neighborhood of plaintiff, has gone up since 1877; the plaintiff's property is of no less value now, by reason of the ditch, than in 1877. The ditch has not been enlarged there; the sidewalk is in good condition and about as wide as any in town; I walk by there nearly every day. Cross-examination. Some of the lots on the ditch sell for more than those away; mine did. I wanted it because the ditch was there. I can name a hundred benefits it would be to me. Crisman: Helped measure the ditch. It will average two and a half feet in depth at this place. Not been enlarged or increased in depth or width. Have seen nothing to indicate any damage to plaintiff's property by the ditch. Sidewalk is in good condition, and nearly full width,-ten feet two inches from fence to bank. Sidewalks are usually twelve feet. Ferris: Have worked on the ditch for the last two years, and am familiar with it. It has not been enlarged. The depth is two feet two inches. The flumes are the same as when I first knew the ditch and its capacity in 1871. Don't think it has done any damage to plaintiff's property since 1877. Shields: Work in defendants' mill. The ditch has not been enlarged Witnesses Mackintosh and Henderson testified to nothing material. J. K. Mullen, one of the defendants: The ditch has not been enlarged. is a little over two feet deep. There was only one house in the locality of plaintiff's premises in 1871, when we took the ditch. The ditch has not depreciated property. The fact that the ditch was there has not tended to give the whole of the property along there a less value. The plaintiff's lot is three times the value now that it was in 1877 Defendants rest. Plaintiff, recalled in rebuttal, testified: I never told Davis that the ditch. was no detriment to me. From the foregoing summary of the testimony in the case it is apparent that two conclusions can be legitimately drawn: First, that no specific injury peculiar to the plaintiff, accruing by reason of the ditch since his purchase of the property in question, was proved; nor were any facts established upon which the jury were warranted in computing or awarding damages in any specific sum whatever. Second, that about the only way in which it was sought on behalf of the plaintiff to prove that he had suffered injury, was by attempting to show that the market value of his property would have been greater if the ditch had never been constructed, or should now be entirely removed. This was not a proper measure of damages recoverable by plaintiff, nor was it even averred in the complaint as a ground of recovery, and the admission of such testimony was error. In the case of City of Denver v. Mullen, 7 Colo. 345,1 which involved the rights of the same parties appellant to maintain this ditch in the street here in controversy, and other streets, as against the city, we held that the city accepted the dedication of these streets subject to the prior lawfully acquired right of the ditch company to construct and maintain the ditch where it now runs, and for the purpose to 1S. C. 3 PAC. REP. 693. which it is now applied by these appellants. Hence no recovery can be had for damages incident to the construction, existence, and maintenance of the ditch within the scope of the lawful authority under which said ditch was constructed and is maintained. In other words, the ditch existing by lawful authority, its proprietors are not liable for damages resultant from such existence of the ditch, ipso facto, merely. Where one buys a city lot bordering upon ground set apart or dedicated to any public use, he takes it subject to all the annoyances incident to the purposes of the dedication. If he buys his lot adjoining a street, he takes it subject to the rights of the public to use the street for all the appropriate uses of a street. City of Morrison v. Hinkson, 87 Ill. 587; City of Denver v. Bayer, 7 Colo. 113; S. C. 2 PAC. REP. 6. It may be admitted that the use of this ditch for the purposes to which it is applied by appellants is not one of the ordinary or legitimately contemplated purposes of a public street, but inasmuch as such use of the ditch, as held in the case of City v. Mullen, above referred to, is an easement, subject to which the city has accepted the dedication of the streets through which it passes, the appellee purchased his lot subject to the use of the street with the easement in question; for he certainly acquired no greater rights in this respect by his purchase than the city or the public by the acceptance of the dedication under the existing rights of the ditch proprietors. Had appellee averred and proved that the damages sought to be recovered resulted from an unlawful, improper, or negligent manner in the use of said ditch by appellants, or had the ditch been constructed subsequent to his purchase of his lot, the case would have presented an entirely different question. In the latter contingency a right of action for damages would lie, if depreciation in value resulted by virtue of the provisions of our constitution. City v. Bayer, supra. When a consequence, which would otherwise constitute even a nuisance, is a necessary and probable result of an act done in pursuance of legislative authority, the grant of such authority, if not obnoxious to constitutional objections, operates as a protection, but if done unnecessarily, or in a negligent or improper manner, it cannot then be said to have been contemplated by the grant, and therefore not authorized thereby. Wood, Nuis. §§ 746, 747. While such an authorized act, exercised within the fair scope of the grant, cannot be a public nuisance, it may be a private one, and the grant afford no protection to an action for resultant damages; and for consequential injuries resulting from an excess of power, or from an exercise of lawful powers in an improper, careless, or negligent manner, a remedy may be had. Id. §§ 750-757. The attempt of appellee to prove depreciation of his property by reason of the existence and maintenance of the ditch, admitted over objection thereto by counsel for appellants at the trial, was, neverthe 522 THE PACIFIC REPORTER. less, met on cross-examination, and by testimony on the defense, which, we think, shows conclusively that not only was there no depreciation from such cause, but that the property had increased in value since the appellee's purchase, notwithstanding the ditch, although it might be worth still more if the ditch were not there. If the jury founded their verdict upon a belief that appellee established the fact that his property had depreciated or was of less value by reason of the maintenance and proper use of the ditch since his purchase, the verdict and judgment thereon could not stand upon such a finding, for the If the verdict was based upon a finding reasons herein before stated. that specific damages were proved from any other cause of action alleged in the complaint, it has no better support; for it is evident from all the testimony that appellee utterly failed to state and prove specific damages resulting from any act of appellants for which he would be legally entitled to recover. The verdict and judgment being therefore clearly contrary to both the evidence and the law of the case, the judgment must be reversed. (4 Utah, 100) SUPREME COURT OF UTAH. CEREGHINO v. CEREGHINO. Filed April 20, 1885. 1. PRACTICE IN UTAH-NEW TRIAL-FAILURE TO SERVE NOTICE-HOW CURED. The failure, by a party intending to move for a new trial, to serve upon the other party the notice required by the statute, is cured by the latter party proceeding subsequently as if such notice had been served. 2. SAME-STATEMENT-PRESUMPTION. Under the practice in Utah the presumption is that the statement contains all the evidence necessary to explain the particular points specified as error, and no more. Dickson & Varian, for appellant. Arthur Brown, for respondent. BOREMAN, J. On the twenty-second of May, 1880, appellant brought suit against respondent for divorce, in the Third district court. Answer having been duly filed, a decree, after hearing, was, on the twentieth of May, 1882, entered, granting divorce as prayed. On the twentyfifth of August, 1880, appellant brought suit in the same court against respondent for partition also. Answer was duly filed therein, and on the fifth of June, 1882, after hearing, a decree was entered therein directing the sale of the property and a division of the proceeds thereof between appellant and respondent. On the eleventh of October, 1884, the motion of the respondent theretofore submitted in each of said causes for new trial was allowed, and appellant thereupon brought the causes to this court. By stipulation the causes were heard together, and one statement made for use in both. It is objected that no notice of intention on the part of respondent to move for a new trial in the court below was ever filed or served, and in support of this objection the appellant asks leave of this court to introduce a certificate of the clerk of the court below "that no notice of motion of new trial, nor order continuing jurisdiction over the cause from April term, A. D. 1882, is of record;" also "the stipulations between the parties to the action extending time to file statement on new trial or appeal, of date June 5 and 30, A. D. 1882;" also the order adjourning court on July 22, 1882, and the minute entry of the submission of the motion for new trial, of date October 6, 1884. If the leave to introduce these matters were proper now, and it should be granted, we do not think it would avail the appellant anything. The first step to be taken when a new trial is desired, is to give the notice of intention to move therefor. The making and settlement of the statement follows. The record shows that appellant appeared, and offered amendments to the proposed statement presented by respondents; that the amendments were allowed, and the statement then agreed to and signed by attorneys of both appellant and respondent. The inference is that she (the appellant) had had notice of the motion which |