Bijou Irr. Dist. v. Cateran Land & Live Stock Co.

• Decision Date: 02 April 1923
• Docket Number: 10171.
• Citation: 73 Colo. 93,213 P. 999
• Parties: BIJOU IRR. DIST. v. CATERAN LAND & LIVE STOCK CO.
• Court: Colorado Supreme Court

213 P. 999

73 Colo. 93

BIJOU IRR. DIST. v. CATERAN LAND & LIVE STOCK CO.

No. 10171.

Supreme Court of Colorado, En Banc.

April 2, 1923

Error to District Court, Morgan County; L. C. Stephenson, Judge.

Action by the Cateran Land & Live Stock Company against the Bijou Irrigation District. Judgment for plaintiff, and defendant brings error.

Reversed and new trial granted.

James W. McCreery, Donald C. McCreery, Hubert D Waldo, Jr., all of Greeley, and George C. Twombly, of Ft Morgan, for plaintiff in error.

Ponsford, Carnine & Pender, of Denver, and Walter S. Coen, of Ft. Morgan, for defendant in error.

DENISON J.

Defendant in error was plaintiff below and had a verdict and judgment against plaintiff in error for $15,000 on account of damage to its land by seepage from defendant's reservoir. The plaintiff in error argues three points: (1) The evidence is insufficient; (2) the jury viewed the premises and looked at certain holes of which no testimony had been given; (3) erroneous instructions were given, and proper ones refused.

As to the first: The engineer witnesses for both sides say that the source of some of the water on plaintiff's land was the reservoir of defendant. The only practical question for the jury, then, was: How much damage, if any, was done by such water? We cannot say the verdict was wrong.

As to the second: Testimony had been given of many holes bored to learn the position and course of the underflow. Upon the view by the jury, under order of court, the jurymen looked at other holes on the land of plaintiff in the corrals as well as those of which testimony had been received, and this is assigned as error. We do not think it was ground for a new trial. The jury upon view is expected to look at everything on the viewed premises. They are not confined to the matters and things mentioned to the testimony given in the courtroom. Yet, it they were, the witness Rhodes testified concerning water in the corrals. This is a different matter from an examination by some of the jury on their own motion without leave of the court. There was no proof of tampering with water in the holes, and the court was right in overruling the motion for new trial on that point.

As to the third point:

(a) Instruction No. 1 given by the court was perhaps erroneous, but the only objection made to it was that it contained quotations from the second defense of the answer, upon which no evidence had been offered, and which were not relied on at the trial. The substance of the matter quoted was that the damage to the plaintiff's land was caused by high water in the river, heavy rains and seepage from the Putnam ditch. It was improper to plead the matter quoted because it was merely evidential, tending to show that the damage to plaintiff's land was not due to percolation or seepage from defendant's reservoir and so to support defendant's denials. Payne v. Williams, 62 Colo. 86, 160 P. 196; Swanson Theater Co. v. Pueblo Co., 70 Colo. 83, 86, 197 P. 762, and cases there cited. But we cannot say that the quotation of it was certainly prejudicial and cannot presume it to be so. We do not agree that by merely quoting the answer the court restricted the consideration of the jury to the matters comprised in the quotation. Indeed, the court in the same instruction, in addition to the matter complained of, stated the denials on which the defendant relies.

We cannot consider the other objections now made to instruction No. 1, because they were not made to the court below. Rule 7 (211 P. vii).

(b) The defendant introduced evidence tending to show that plaintiff's land could be drained and the damage averted, and plaintiff sought to introduce evidence to rebut it; then the court of its own motion refused to permit the rebuttal, stating that the defendant's evidence on that point would be 'instructed out,' and thereupon, on motion of plaintiff, struck out the said evidence of defendant. The defendant's counsel did not object or except to this order, indeed took no part in the colloquy between the court and plaintiff's counsel on the point, but when the court gave instruction No. 3, as follows:

'All evidence introduced for the purpose of showing the feasibility of construction of a drainage system for the drainage of plaintiff's land is stricken out and should not be considered by the jury,'

defendant objected and excepted.

The order and instruction were erroneous. Such evidence was cogent and weighty upon the question of the amount of damages. The damage claimed was $20,000. Suppose it could be proved that, although the land water-soaked was worth $20,000 less than when dry, yet for $1,000 its value could be restored by drainage? The question answers itself. 17 C.J. 1038, and cases cited; Mustang Reservoir Co. v. Hissman, 49 Colo. 308, 310, 311, 112 P. 800; Colorado Springs Co. v. Albrecht, 22 Colo.App. 201, 123 P. 957; Hanrahan v. Baltimore, 114 Md. 517, 80 A. 312.

The court ordered the evidence stricken and gave the instruction on the ground that the feasibility of drainage had not been pleaded; but the evidence went to negative the amount of damages (31 Cyc. 210, note 93), was not in confession and avoidance, it would have been improper to plead it because it was mere evidence (Swanson Theater Co. v. Pueblo Co., 70 Colo. 83, 86, 197 P. 762), and it was competent in support of the denials (Payne v. Williams, 62 Colo. 86, 160 P. 196).

The serious question here is whether the defendant is barred from objecting to the instruction by his failure to object or except to the order striking out his evidence. We think he is, because, by reason of the stand taken by the court at the time of the order, plaintiff was prevented from rebutting, and the defendant, by failing to object or except, impliedly consented to the order. To allow him to practically reinstate such evidence (which would have been the effect of sustaining his objection to the instruction in question) would prevent rebuttal and be unjust.

(c) Defendant objected to instruction No. 13 on...