Billings Realty Co. v. Big Ditch Co.
| Decision Date | 29 April 1911 |
| Citation | 115 P. 828,43 Mont. 251 |
| Parties | BILLINGS REALTY CO. v. BIG DITCH CO. |
| Court | Montana Supreme Court |
Syllabus by the Court.
A complaint, in an action for injury to real estate by water from an irrigation canal, which describes the premises as the N. 1/2 of the N.W. 1/4 of a specified section in a designated township and range, with the exception of 29 acres previously sold, which 29 acres were unaffected, sufficiently describes the land as against a general demurrer or objection to evidence.
Under Rev. Codes, § 6539, providing that objections to a complaint not taken by demurrer or answer, are waived, an objection to a complaint for injury to land, because it is indefinite in the description of the land involved, must be made by special demurrer, or it is waived.
Laws 1909, c. 94, providing that a certificate of incorporation issued by the Secretary of State shall be prima facie evidence of corporate character, does not refer to a corporation organized prior to 1895, since up to that time there was no provision for the issuance of certificates of incorporation.
A corporation, to supply water to its stockholders for irrigation and domestic purposes, is not an insurer, and is only liable for injuries caused by its works when guilty of negligence, which must he pleaded and proved.
A corporation, to supply water to its stockholders for irrigation, built a canal, and defendant, on acquiring the canal, constructed a dam and spillway at a point about three-fourths of a mile short of its previous terminus beyond which individual stockholders alone used the water for irrigation purposes. It had been the custom for stockholders to turn the water from the canal into their laterals, and for those who used water beyond the spillway to turn the water down the old canal at that point, and the corporation merely exercised supervision to the end that no more water should be taken by any individual user than the amount to which he was entitled. Water causing injury to an owner of land was turned down the spillway by a stockholder entitled to use it. Defendant did not contract with the stockholders below the spillway as to taking over the ditch. There was no appreciable change in the use of the canal below the spillway, after its construction, from the use before that time. The head gate in the dam below the spillway was defective, and defendant failed to make any provision for caring for surplus water. Held to show that the stockholders were agents of defendant, and it was liable for the injuries sustained.
To hold a corporation supplying water through its canal to its stockholders for irrigation purposes liable for injuries caused by stockholders turning water from the canal and flooding the land of another, it must appear that the wrongful act was committed by the stockholders acting as agents for the corporation.
Under Rev. Codes, § 6746, subd. 5, providing that no motion for new trial for errors in instructions shall be granted, unless such errors were specifically pointed out and excepted to at the settlement of the instructions, etc., a party offering an instruction which the court refuses to give need only take his exception and have the same settled in a bill of exceptions, or statement of the case.
It is not error to refuse a correct instruction, where other appropriate instructions on the same subject have been given.
Where a corporation supplying water through its canal to its stockholders for irrigation permitted water to flow in the canal, and authorized its stockholders to change conditions at the spillway to get water below it, it could not escape liability for the acts of the stockholders, on the ground that it did not anticipate that water would be used below that point after it had adjusted the spillway.
Whether a stockholder is an agent of a corporation depends on the facts of the particular case, and it cannot be said, as a matter of law, that a stockholder is not an agent of the corporation.
Though under Rev. Codes, § 6766, error cannot be predicated on the trial court's refusal to make findings, unless requested the failure to make a request does not relieve the court of its duty, under section 6763, to make findings.
Appeal from District Court, Yellowstone County; Frank Henry Presiding Judge.
Action by the Billings Realty Company against the Big Ditch Company. From a judgment for plaintiff, defendant appeals. Affirmed.
F. B. Reynolds, for appellant.
W. M. Johnston and H. J. Coleman, for respondent.
About 1882 the Minnesota & Montana Land & Improvement Company constructed a large irrigation canal which tapped the Yellowstone river some 25 miles west of Billings, and, following a general easterly direction, terminated upon the land of the plaintiff. In 1900 the defendant succeeded to the ownership and control of the canal, and has since operated it for the purpose of furnishing water for irrigation and domestic uses. About November 1, 1908, a large quantity of water flowed through the canal and out over plaintiff's lands, carrying away the soil and injuring the premises. This action was commenced by plaintiff to recover damages in the sum of $1,000, and to secure an injunction restraining the defendant from permitting water to flow through the canal to the east terminus, until such time as ample means were employed to care for the surplus. It is alleged that the defendant company has been negligent in failing to equip its canal with wasteways or other means to care for or control the surplus water in the canal, and in failing to provide any means for caring for the water which flowed through the canal to the eastern terminus, and the result of such negligence was the injury to plaintiff's lands. The answer denies any negligence or any injury or damage to plaintiff's property. The trial upon the questions of negligence and damage resulted in a verdict and judgment in favor of plaintiff, and the trial court ordered an injunction in conformity with the prayer of the complaint. The defendant appealed from the judgment and from an order denying it a new trial.
1. In the complaint plaintiff's lands are described as "the north half of the northwest quarter of section thirty-two, in township one, north of range twenty-six east of the Montana Meridian, in Montana, with the exception of twenty-nine acres of said subdivision of land heretofore sold by plaintiff to third parties, but which said twenty-nine acres are in no way affected by the washout and excavation hereinafter mentioned." It is now insisted that the complaint does not state a cause of action, for the reason that the land injured is not described sufficiently. It may be admitted that if the execution to be issued upon a judgment rendered in this action would operate directly upon the land in question, as, for instance, in the case of the sale of the land itself, or if it was sought to enforce a tax or other lien, the description herein given might not be sufficiently specific to enable the proper officer to identify it; but in an action for damages for trespass, where the property enters into the controversy only incidentally, much less particularity is required in describing it. All that the plaintiff is called upon to do is to inform the defendant, with reasonable certainty, of the location of the property upon which the trespass is alleged to have been committed, to the end that a defense may be made or a plea of former adjudication thereafter interposed, if another action should be instituted for the same injury. There was not any special demurrer or motion to make more specific interposed, and as against a general demurrer or objection to the introduction of evidence this complaint sufficiently meets the requirements of the rule. Gulf Railway Co. v. Jagoe (Tex. Civ. App.) 32 S.W. 1061; Lake v. Loysen, 66 Wis. 424, 29 N.W. 214; 21 Ency. P. & Pr. 818.
If it be assumed that the complaint is indefinite in the description of the land involved, an objection to it on that account must be made by special demurrer, or it is deemed waived. Rev. Codes, § 6539.
2. The corporate existence of the plaintiff was put in issue by the pleadings, and upon the trial plaintiff offered, in evidence of such corporate existence, the original articles of incorporation on file in the office of the county clerk of Yellowstone county, and a certified copy thereof from the office of the Secretary of State. Objection was made to the offered evidence, but the objection was overruled, and it is insisted that the Legislature has provided the method for proving corporate existence, and that such method must be deemed to be exclusive. The legislation to which reference is made is chapter 94, Laws of 1909. This chapter provides that the certificate of incorporation issued by the Secretary of State shall be admitted, and shall be prima facie evidence of the corporate character and capacity of the corporation and of its right to transact business. The chapter contains a general repealing clause. The evidence discloses that this plaintiff corporation was organized in 1891 for the term of 20 years. Prior to the adoption of the Codes of 1895, our corporation laws were contained in the Compiled Statutes of 1887, and amendments thereto, found in the Legislative Acts of 1893. Prior to 1895, there was...
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