Nampa & Meridian Irr. Dist. v. Mussell
| Decision Date | 18 June 2003 |
| Docket Number | No. 28713.,28713. |
| Citation | 139 Idaho 28,72 P.3d 868 |
| Court | Idaho Supreme Court |
| Parties | NAMPA & MERIDIAN IRRIGATION DISTRICT, Plaintiff-Respondent-Cross Appellant, v. Tim J. MUSSELL and Carol M. Mussell, dba Victory Greens Nursery, Defendants-Appellants-Cross Respondents. |
Howard Lopez & Kelly PLLC, Boise, for appellants. John P. Howard and Randall C. Probasco argued.
Ringert, Clark Chtd., Boise, for respondent. Daniel V. Steenson argued.
This is an appeal from a judgment awarding damages resulting from the interference with an easement. We affirm the judgment as modified and remand this case for further modification of the amount to award as damages.
The plaintiff Nampa & Meridian Irrigation District (District) is a duly organized irrigation district under Idaho law. It has an extensive system of canals, laterals, and sub-laterals providing water to approximately 64,000 acres of residential, agricultural, and industrial lands located in Ada and Canyon counties in Idaho. The defendants Tim and Carol Mussell own a 23-acre parcel of real property in Ada County upon which they operate a nursery and landscaping business known as Victory Greens Nursery. The northeastern boundary of the Mussells' property is approximately 1550 feet in length. For over eighty years prior to November 2000, the District has had an easement along the northeastern edge of the Mussells' property for an earthen lateral known as the Kennedy Lateral. The centerline of the Lateral was the boundary of the property. The Kennedy Lateral carries up to 3,000 miner's inches of water for delivery to more than 3,000 acres of land, most of which is located downstream from the Mussells' property.
The adjoining land to the northeast is higher in elevation than the Mussells' property. The northeastern bank of the Kennedy Lateral was generally the same level as that adjoining land. The southeastern bank of the Lateral, which was located on the Mussells' property, was about eight to fifteen feet wide at the top, and it then sloped downward a distance ranging from 100 to 200 feet across the Mussells' property until it reached the level of the remainder of the property.
When the Mussells purchased the property in 1993, it was agricultural property that appeared not to have been farmed for ten to fifteen years. In the fall of 1997, they discovered that the portion of their property adjacent to the northern end of the Kennedy Lateral was saturated with moisture as a result of water seepage that was aggravated by gopher holes. Their attempts to control the gophers and seal the gopher holes did not eliminate the seepage and boggy conditions on that portion of their property.
In November 2000, Mr. Mussell decided to excavate the sloping bank of the Kennedy Lateral in an attempt both to divert the seepage and to expand the usable portion of the property. Without first consulting an engineer or other expert, or contacting the District, Mr. Mussell excavated almost the entire length of the slope of the southeastern bank of the Kennedy Lateral. When he was finished, the bank ranged from eight to twelve feet in width and, rather than sloping, was vertical ranging from ten to twelve feet above ground level at the northeasterly end of the Mussell property to two to four feet above ground level at the southeasterly end.
Mr. Mussell recognized that his excavation compromised the Kennedy Lateral, and he planned to install a retaining wall along the bank to support it, but he had not previously contacted anyone regarding the design or feasibility of doing so. On November 17, 2000, the District learned of Mr. Mussell's excavation of the bank of the Kennedy Lateral. After viewing the area, a representative of the District told Mr. Mussell to take no further action until he had obtained engineering plans and the District approved them. The District representative told Mr. Mussell that time was of the essence and that work needed to be completed by March 15, 2001, so that the Kennedy Lateral would be ready for the 2001 irrigation season.
Mr. Mussell contacted an engineer to design a retaining wall, and on December 15, 2000, the engineer submitted a preliminary plan. On January 3, 2001, the engineer submitted a modified plan showing that the retaining wall would be constructed at least fifteen feet from the channel of the Lateral. The proposed retaining wall, as shown in those plans, would not have prevented the failure of the Kennedy Lateral when it was filled with water. Such failure would cause flooding of the Mussells' property and adjacent properties and would cause significant crop losses on those downstream lands served by the Lateral.
The District decided to repair the portion of the Kennedy Lateral adjoining the Mussells' property by replacing it with a concrete pipeline. It installed the pipeline in January and February of 2001. Installing the concrete pipeline was the most expedient and cost-effective manner to repair the damage done by Mr. Mussell.
On March 21, 2001, the District filed this lawsuit to recover damages for the cost of repairing the Kennedy Lateral based upon the theories of negligence, unreasonable interference with an easement, and negligence per se based upon a violation of Idaho Code § 55-310. The District also sought to enjoin the Mussells from doing anything in the future that would obstruct, damage, or interfere with the District's easement. On April 9, 2002, the District filed an amended complaint adding a claim for treble damages pursuant to Idaho Code § 42-902.
This case was tried to the district court, which issued its findings of fact, conclusions of law, and order on June 13, 2002. The court found that the slope removed by Mr. Mussell provided "sub-adjacent support" for the Kennedy Lateral, that pursuant to Idaho Code § 55-310 Mr. Mussell had a duty to use ordinary care and skill in excavating the slope, and that he was negligent and breached that duty of care. The court found that the damages recoverable by the District totaled $127,245.41 but it was not entitled to treble damages pursuant to Idaho Code § 42-902.
On June 28, 2002, the district court entered judgment in favor of the District in the sum of $127,245.41. The Mussells timely appealed from the judgment, and the District cross-appealed the court's failure to award treble damages.
A. Did the district court err in finding that the District was entitled to recover damages from the Mussells?
B. Did the district court apply the proper measure of damages?
C. Was the award of damages supported by the evidence?
D. Was the District entitled to treble damages pursuant to Idaho Code § 42-902?
E. Is either party entitled to an award of attorney fees on appeal?
A trial court's findings of fact will not be set aside on appeal unless they are clearly erroneous. Bramwell v. South Rigby Canal Co., 136 Idaho 648, 39 P.3d 588 (2001); IDAHO R. CIV. P. 52(a). When deciding whether findings of fact are clearly erroneous, this Court does not substitute its view of the facts for that of the trial court. Bramwell v. South Rigby Canal Co., 136 Idaho 648, 39 P.3d 588 (2001). It is the province of the trial court to weigh conflicting evidence and to judge the credibility of witnesses. Rowley v. Fuhrman, 133 Idaho 105, 982 P.2d 940 (1999). On appeal, this Court examines the record to see if challenged findings of fact are supported by substantial and competent evidence. Id. Evidence is regarded as substantial if a reasonable trier of fact would accept it and rely upon it in determining whether a disputed point of fact has been proven. Bramwell v. South Rigby Canal Co., 136 Idaho 648, 39 P.3d 588 (2001).
A. Did the District Court Err in Finding that the District Was Entitled to Recover Damages from the Mussells?
The district court found that the Mussells were liable for damages because they negligently breached their duty to provide sub-adjacent support for the Kennedy Lateral as required by Idaho Code § 55-310, which provides:
Each coterminous owner is entitled to the lateral and subjacent support which his land receives from the adjacent land, subject to the right of the owner of the adjoining land to make proper and usual excavations on the same for purposes of construction, on using ordinary care and skill, and taking reasonable precautions to sustain the land of the other, and giving previous reasonable notice to the other of his intention to make such excavation.
"The right of lateral support is the right which soil in its natural state has to support from land adjoining it." 1 AM. JUR.2d Adjoining Landowners § 40 (1994). "Closely related to the matter of lateral support and governed by similar rules is that of subjacent support, by which is meant the support of the surface by the underlying strata of the earth, or the support of the upper floors of a building by the part below." Id. at § 80. Although the district court found that Mr. Mussell's excavation "removed some of the sub-adjacent support for the Kennedy Lateral," it is clear that the district court meant the lateral support. There was no contention that Mr. Mussell removed earth underlying the Kennedy Lateral.
The Mussells contend that the evidence in this case did not establish liability because the right to lateral support only applies to land in its natural state and does not include the additional weight of buildings or other structures, see Id. at § 44, and that a cause of action does not accrue until the earth actually subsides, see Id. at § 70. The Mussells argue that their duty to provide lateral support did not include a duty to provide lateral support for the added weight of a water-filled lateral and that the district court did not find that there was actual subsidence of any soil within the boundaries of the District's easement.
It is unnecessary to determine whether the Mussells are liable based upon a...
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