The MOUNTAIN STATES TELEPHONE AND TELEGRAPH COMPANY, a corporation, Appellant,
John C. KELTON and Andrew J. Kelton, copartners doing business as John C. Kelton and Son, and Albert Behrstock, Ralph G. Burgbacher and A. J. Burgbacher, Appellees.
[79 Ariz. 127] Fennemore, Craig, Allen & Bledsoe and Walter E. Craig, Phoenix, for appellant.
Moore & Romley and Anthony T. Deddens, Phoenix, for appellees John C. Kelton & Son.
Jennings, Strouss, Salmon & Trask and Rex H. Moore, Phoenix, for appellees Behrstock and Burgbacher.
This action, brought to recover damages for injuries inflicted by defendants to plaintiff's underground telephone cable, was tried to the court sitting without a jury, resulting[79 Ariz. 128] in a judgment for the defendants, and plaintiff appeals. The parties will be designated the same as they were in the lower court.
The evidence discloses that the Mountain States Telephone & Telegraph Company, a corporation, plaintiff-appellant, is a public utility engaged in the telephone and telegraph business in the intermountain west. It maintains an underground trunk cable extending from its main offices at Third Avenue and Adams in Phoenix, Arizona, to its North office at Second Street and Indian School Road. This trunk line consists of four lead-covered cables enclosed within a single conduit which is made of clay tile. The conduit is divided into four sections under one housing, and the whole thereof is covered by a concrete cap. Concrete box manholes for convenience in installation and repair work are located at intervals of approximately 600 feet along the line.
On July 27, 1928, plaintiff entered into a written agreement with Central Avenue Dairy, Inc. (who were then the owners of the SW 1/4 of Sec. 29, T. 2 N., R. 3 E., G. & S.R.B. & M., containing approximately 160 acres of land bounded, roughly speaking, by Osborn Road on the north, Central Avenue on the east, Thomas Road on the south, and Seventh Avenue on the west), by the terms of which plaintiff was granted a perpetual easement for right of way across a portion of said lands for the purpose of installing and maintaining an underground conduit for telephone and telegraph cables, together with manholes used in conjunction therewith. The agreement specifically described the course to be followed in laying a conduit and it makes reference to an attached blueprint which is made a part thereof, and upon said plat is shown in great engineering detail the precise installation. The easement contains inter alia the following pertinent provision:
'* * * during the course of the construction, repair, and/or maintenance of said lines, conduit and manholes not to cause nor permit any damage or injury to any of the livestock, equipment, crops or other property of Owner, nor any interference with or interruption of the operations or conduct of Owner's farming and/or dairying business on said premises.' (Emphasis supplied.)
The agreement, with blueprint attached, was thereafter duly placed of record in the office of the county recorder of Maricopa County.
Pursuant to this agreement, the plaintiff in the year 1930 laid a conduit, containing its cables, underground on said property, along what would be an extension of Third Avenue from Merrill Street north to Osborn Road, where they have remained continuously-with but the instant untoward incident-to this day. The conduit practically follows the center of projected Third Avenue along what the engineer terms 'Sixteenth[79 Ariz. 129] Sec. Line'. A portion of the surface over the cable was used by the dairy company as a private driveway.
The defendants-appellees, Behrstock and Burgbacher, acquired all of the capital stock of Central Avenue Dairy in January, 1951, and upon dissolution of that company became the successors in interest to the premises in question. These defendants will hereinafter be designated as such or as the owners. Thereafter the new owners employed the services of defendant-appellee John C. Kelton and Son, Licensed contractors-hereinafter termed the contractor or defendant-to do certain clearing work on the premises. Thereupon said contractor entered upon the premises, pursuant to written and oral agreements with the owners, for the purpose of clearing ahd levelling the ground in accordance with the general plan to convert the use thereof into a residential and business subdivision which is now known as 'Park Central Development'.
The contractors employed the use of a bulldozer to dig up trees, concrete footings and other installations. The fallen trees were then skidded to a common point in an
open field that had been used for pasture and were there burned. It so happened that the spot selected for this was directly over plaintiff's conduit line. R. T. Moman, the bulldozer operator, was, on the morning of August 5, 1950, engaged in 'spoiling out' any sign of the fire by trenching or excavating to mix the accumulated ashes with dirt to prevent the ashes from being strewn and blown about. While thus engaged the bulldozer blade struck the conduit and severed a 455 pair 19-gauge lead-covered cable and damaged the other top cable containing 909 pair 22-gauge lead wires. The two lower cables in the conduit were not disturbed.
Defendants refusing to pay for the resulting damage, suit was brought by plaintiff for destruction and damage to its property. All the defendants answered. The owners alleged that the damages, if any, sustained by plaintiff were the direct and proximate result of the sole negligence or the contributory neglignece of plaintiff, or the result of an unavoidable accident or of the assumption of risk by plaintiff. Judgment was entered for all defendants. Motions for new trial and to set aside the judgment were filed by plaintiff and denied by the court and this appeal followed. In addition the owners filed a cross claim against contractors Kelton, upon which judgment was entered denying owners any relief, and no appeal was taken therefrom.
There are but two findings that need concern us. First there was a sharp conflict in the evidence as to the depth at which the damaged conduit was buried, witnesses for the defendants fixing it at from 25 1/2 to 30 inches, whereas the plaintiff's witnesses ranged from a minimum depth of 30 inches to approximately four feet. The court found:
'* * * that the facts are, that the cable was broken at the point where the bulldozer hit it; that the bulldozer was [79 Ariz. 130] approximately two and a half feet below the ...