Boise Development Co., Ltd. v. Boise City

• Decision Date: 28 September 1917
• Citation: 30 Idaho 675,167 P. 1032
• Parties: BOISE DEVELOPMENT COMPANY, LTD., a Corporation, Respondent, v. BOISE CITY, a Municipal Corporation of the State of Idaho, Appellant
• Court: Idaho Supreme Court

167 P. 1032

30 Idaho 675

BOISE DEVELOPMENT COMPANY, LTD., a Corporation, Respondent, v. BOISE CITY, a Municipal Corporation of the State of Idaho, Appellant

Supreme Court of Idaho

September 28, 1917

ELECTION OF REMEDIES-RES ADJUDICATA-STATUTE OF LIMITATIONS-ULTRA VIRES-MUNICIPALITIES-IMPLIED POWERS-ACTION ON CASE-CONSEQUENTIAL DAMAGES-PARKS-GOVERNMENTAL FUNCTIONS-RIPARIAN OWNERS-BREAKWATERS-OBSTRUCTION OF STREAM-MUNICIPAL LIABILITY FOR DAMAGES.

1. In order to apply the doctrine of election of remedies, the party sought to be barred must actually have had at his command more than one remedy.

2. When a party, acting upon a mistaken theory as to his legal rights, brings his action and is defeated by reason thereof and afterward renews the litigation, basing his claim upon a correct theory, the former judgment is no bar to the second action.

3 Subd. 2, sec. 4054, Rev. Codes, limiting the time within which an action may be brought for trespass upon real property, has no application to an action on the case for consequential damages.

4. Actions on the case are governed by the provisions of sec 4060, Rev. Codes, that: "An action for relief not hereinbefore provided for, must be commenced within four years after the cause of action shall have accrued."

5. Where damage is not a direct but only a consequential result of an act, no cause of action arises until injury has been done or actual damage inflicted.

6. Municipalities have implied authority to take whatever lawful means are necessary to carry out their express powers, and to protect their property.

7. The defense of ultra vires can be interposed only where the act complained of was wholly beyond the powers of the municipality. If the wrongful act in question is one which the municipality had the right to do under some circumstances or in some manner, then it is not ultra vires.

8. In order for a municipality to avail itself of the defense that its tort, committed while acting within the scope of its authority, was the result of the exercise of a governmental function, it must appear that such function was the exercise of a legal duty imposed by the state, which it might not omit with impunity but must perform at its peril.

9. The mere grant to a municipality of power to maintain a public park enjoins no absolute duty upon it to do so.

10. The care and maintenance of parks is primarily a private as opposed to a governmental function.

11. A municipality has a right, as a riparian owner, to construct a breakwater for the protection of its property, but if in so doing it so obstructs the stream as to divert it, and thereby damages the property of another riparian owner the municipality is liable for resulting damage.

12. The liability in such cases does not rest solely upon the narrow ground of negligence, but rather upon the broad legal principle that no one is permitted to so use his own property as to invade the like property rights or cause injury or damage to the property of another.

[As to liability of a municipal corporation when injury to another person has resulted from an act done by it in its governmental capacity, see note in 108 Am.St. 140]

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Charles P. McCarthy, Judge.

Action against Boise City for the diversion of the waters of Boise River. Judgment for plaintiff. Affirmed.

Judgment affirmed. Costs awarded to respondent.

J. P Pope, S. L. Tipton and Charles F. Reddoch, for Appellant.

The legislature, in section 1 of the charter of Boise City, outlined the public or governmental functions of the city and placed public parks as falling within the class or function of one of the governmental agencies of the city. (City of Kokomo v. Loy (Ind. App.), 110 N.E. 694; Mayor etc. of Nashville v. Burns, 131 Tenn. 281, 174 S.W. 1111, L. R. A. 1915D, 1108; Bisbing v. Asbury Park, 80 N.J.L. 416, 78 A. 196, 33 L. R. A., N. S., 523; Blair v. Granger, 24 R. I. 17, 51 A. 1042; Board of Park Commrs. v. Prinz, 127 Ky. 460, 105 S.W. 948; Ackeret v. City of Minneapolis, 129 Minn. 190, Ann. Cas. 1916E, 897, 151 N.W. 976, L. R. A. 1915D, 1111; Clark v. Waltham, 128 Mass. 567; Hill v. Boston, 122 Mass. 344, 23 Am. Rep. 332; Steele v. Boston, 128 Mass. 583; Russell v. City of Tacoma, 8 Wash. 156, 40 Am. St. 895, 35 P. 605; Harper v. City of Topeka, 92 Kan. 11, 139 P. 1018, 51 L. R. A., N. S., 1032.)

The Boise river is a natural navigable watercourse, under the exclusive control of the state, and the city has no right to interfere with the flow of the same in the absence of a grant of power from the state so to do. (Walbridge v. Robinson, 22 Idaho 236, 125 P. 812, 43 L. R. A., N. S., 240; Boise Irr. etc. Co. v. Stewart, 10 Idaho 38, 77 P. 25, 321, 4 McQuillin, Municipal Corporations, sec. 1437; Scranton City v. Scranton Steel Co., 154 Pa. 171, 26 A. 1; A. L. Lakey Co. v. Kalamazoo, 138 Mich. 644, 110 Am. St. 338, 101 N.W. 841, 67 L. R. A. 931; Kitsap County Transp. Co. v. Seattle, 75 Wash. 673, Ann. Cas. 1915C, 115, 135 P. 476.)

The charter of Boise City did not give it any power or authority to encroach upon, change, control or divert the channel of the Boise river. The acts complained of are therefore ultra vires, and fall within the well-known rule that the city would not be liable. (6 McQuillin, Mun. Corp., sec. 2637.)

The plea of res adjudicata is based upon a former action, in which respondent sought to recover upon the same matters as were submitted to the jury in this case.

If the city had answered in the former action and the cause had been tried upon its merits and verdict rendered in its favor, there would not be any question about our position, but instead of pursuing this course it demurred, and the ruling upon the demurrer was as effective as a trial upon the merits. If said former action had been tried, it would have required the same evidence to establish a liability in that case as was adduced in the present action. (State v. Superior Court, 62 Wash. 556, 114 P. 427; McGuire v. Bryant Lumber & Shingle Mill Co., 53 Wash. 425, 102 P. 237; Brechlin v. Night Hawk Mining Co., 49 Wash. 198, 26 Am. St. 863, 94 P. 928; Smith v. Cowell, 41 Colo. 178, 92 P. 20; Marie M. E. Church v. Trinity M. E. Church, 253 Ill. 21, 97 N.E. 262; Hennessy v. Chicago B. & Q. Ry. Co. (Wyo.), 157 P. 698; Hilton v. Stewart, 15 Idaho 150, 128 Am. St. 48, 96 P. 579; 23 Cyc. 1215-1221.)

At the time of instituting the former action upon contract, wherein the same damages as are sought to be recovered in this case were litigated, there was open and available to respondent the action that it then prosecuted and the present action, and by reason of its election to proceed upon the contract it is now barred and estopped from maintaining the present action. (Whitley v. Spokane etc. Ry. Co., 23 Idaho 642, 132 P. 121; Sheldon v. The Uncle Sam, 18 Cal. 526, 79 Am. Dec. 193; Chappell v. Western Ry. of Alabama, 8 Ga.App. 787, 70 S.E. 208; First Nat. Bank v. Felker, 185 F. 678; Manning v. Galland-Henning Pneumatic Malting Drum Mfg. Co., 141 Wis. 199, 18 Ann. Cas. 976, 124 N.W. 291.)

"After plaintiff has elected to proceed upon contract, he is precluded from thereafter proceeding in tort." ( Price v. Parker, 44 Misc. 582, 90 N.Y.S. 98; Birdsell Mfg. Co. v. Oglevee, 187 Ill. 149, 58 N.E. 231; Roney v. H. S. Halvorsen Co., 29 N.D. 13, 149 N.W. 688; 15 Cyc. 262; Weeke v. Reeve, 65 Fla. 374, 61 So. 749; Mintz v. Jacob, 163 Mich. 280, 128 N.W. 211; 15 Cyc. 259.)

The original complaint in the present action was filed Jan. 18, 1915, more than three years after the wrongful acts had been committed. Respondent shifted its position in its last complaint by saying its damage first occurred in April, 1913, in order to try and avoid the statute of limitations. The Court's ruling in partially, at least, shutting out our evidence in support of this plea was error. (Hicks v. Drew, 117 Cal. 305, 49 P. 189; Williams v. Southern P. R. Co., 150 Cal. 624, 89 P. 599; Vette v. Sanitary Dist. of Chicago, 260 Ill. 432, 103 N.E. 241; Erwin v. Erie R. Co., 98 A.D. 402, 90 N.Y.S. 315.)

"Whenever the nuisance is of a permanent character and its construction and continuance are necessarily an injury, the damage is original, and may be at once fully compensated. In such case the statute of limitations begins to run upon the construction of the nuisance." (St. Louis I. M. & S. Ry. Co. v. Biggs, 52 Ark. 240, 20 Am. St. 174, 12 S.W. 331, 6 L. R. A. 804; Little Rock & Fort Smith Ry. Co. v. Chapman, 39 Ark. 463, 43 Am. Rep. 280; Gould on Waters, sec. 369.)

J. R. Smead and Hawley & Hawley, for Respondent.

Respondent's act in instituting the former action ex contractu to recover damages for an alleged breach of a purported contract, in which action this court held said purported contract to be in violation of sec. 3, art. 8, of the constitution of Idaho, and therefore void, did not constitute an election of remedies in such a sense as to bar the present action in tort. Under the facts there could not be two causes of action coexistent, and therefore respondent had no actual choice of remedies.

"The party must actually have at command two inconsistent remedies." (Whitley v. Spokane etc. Ry. Co., 23 Idaho 642, 132 P. 121; Elliott v. Collins, 6 Idaho 266, 55 P. 301.)

"The fact that a party, through mistake, attempts to exercise a right to which he is not entitled, does not prevent his afterward exercising one which he had and still has unless barred by the previous attempt." (William W. Bierce v. Hutchins, 205 U.S. 340, 346, 27 S.Ct. 524, 51 L.Ed 828; Barnsdall v. Waltemeyer, 142 F. 415, 420, 73 C. C. A. 515; Zimmerman v. Robinson & Co., 128 Iowa 72, 74, 5 Ann. Cas. 960, 102 N.W. 814; In re Van Norman, 41 Minn. 494, 43 N.W. 334;...