Bowman v. Ayers

• Decision Date: 11 March 1889
• Citation: 21 P. 405,2 Idaho 465
• Parties: BOWMAN ET AL. v. AYERS
• Court: Idaho Supreme Court

21 P. 405

2 Idaho 465

BOWMAN ET AL. v. AYERS

Supreme Court of Idaho

March 11, 1889

IRRIGATING DITCH-TENANTS IN COMMON-CONTRACT-RESCISSION-DAMAGES-PART PERFORMANCE.-Where four persons owned in common a water ditch, and while in joint possession and use of the waters thereof said tenants in common entered into an agreement in writing with A., agreeing that if A. would do certain work in enlarging and improving the ditch, that he should have an interest therein, and right to use water therefrom. A entered upon the performance of his contract, and did work upon the ditch, to the value of fifty dollars, and began to use water from the ditch, and was proceeding to complete his contract when he was stopped by the owners, including the persons with whom he had contracted, and who declared the contract rescinded, whereby A. was prevented by them from the completion of his work. No reason was assigned for the attempt to rescind, and no offer to pay for the work done. A insisted upon his contract and right to use the water under it, and continued to use the water from the ditch. Thereupon the owners, including the contracting persons, brought a joint action in trespass against A. for wrongful use of the water from the time he entered. Held, (1) that the defendant's acts did not constitute trespass, and that the plaintiffs cannot recover; (2) that a party to a valid contract, in the absence of fraud or other special reason cannot rescind at pleasure; (3) that where there has been part performance, a party cannot rescind and still retain the benefits received under the agreement.

(Syllabus by the court.)

APPEAL from District Court, Ada County.

The facts fully appear in the following statement by BERRY, J.:

This is an appeal from a judgment rendered in the district court, Ada county. The action is for damages, in trespass, and also praying equitable relief. The complaint avers, in substance "that in 1883 the plaintiffs were the owners and in possession of a certain ditch, necessary for irrigating the lands of plaintiffs; and that the defendant wrongfully entered upon and cut and tapped said ditch, also drew water from said ditch, to the plaintiffs' damages $ 500." It also avers that in 1883, 1884, and 1885 the defendant wrongfully placed dams in said ditch, and cut down its banks, to the further damage of the plaintiffs $ 200. It further avers that the defendant is continuing such trespasses, and threatens and intends to continue them; that the defendant is insolvent, and the plaintiffs remediless, unless the defendant be enjoined; and prays judgment for the sum of $ 500 damages sustained; also that an injunction issue against the defendant. The answer puts in issue each allegation of the complaint and avers ownership, in common with the plaintiffs, to the extent of one-sixth of the whole ditch; that he also owns lands (describing them) to which one-sixth of the waters of the ditch are necessary; that prior to 1887, the ditch being in part on and through the defendant's lands, the plaintiffs wrongfully entered upon his said lands, and enlarged the ditch, and did damage, etc.; and demands judgment, etc. The cause was tried before the court with a jury, and a general verdict was rendered in the following words: "We, the jury in the above-entitled action, find for the plaintiffs, and assess the damages at the sum of nothing." The jury also under instructions of the court, made special findings; the seventh, eighth, and ninth being as follows: "Question submitted to jury, by the court: Q. 7. In the matter of the contract made between the defendant and the plaintiffs in the spring of 1883, by which the defendant was to enlarge and improve the ditch for an interest therein, did the defendant perform all the conditions of the agreement on his part? A. He did not. Q. 8. What was the cost to the plaintiffs of the construction of the ditch under controversy? A. $ 500. Q. 9. What was the value to plaintiffs of the work done, or caused to be done, by the defendant on the ditch under the contract made in the spring of 1883? A. $ 50." The special findings of the jury, except the fifth, are on the alleged-trespass of the defendant, and are, in substance, included in the general verdict. The fifth special finding is that the enlargement of the ditch on defendant's land by the plaintiffs was not without defendant's consent. On this verdict judgment was entered for the plaintiffs decreeing the said ditch to be the property of the plaintiffs; that the defendant be barred of all interest therein; and for $ 271 costs of this action.

Reversed.

Brumback & Lamb, for Appellant.

Though an oral purchase from a cotenant does not convey the legal title, it gives the purchaser an equitable title to the interest of the cotenant, and protects him from being a trespasser. (Hoffman v. Fett, 39 Cal. 111.) The other cotenants can take no advantage of the statute of fraud so long as the selling cotenant does not. (Galway v. Shields, 66 Mo. 313, 27 Am. Rep. 351.) When the answer contains a cross-complaint, it must be replied to so far as the cross-complaint is concerned, or the matters therein alleged will be taken as confessed. (Herold v. Smith, 34 Cal. 124.) The plaintiffs had no right to rescind the contract after part performance by defendant. (2 Parsons-on Contracts, 7th ed., pp. 653, 812.) Judgment outside of the issues is against law. (Lothian v. Wood, 55 Cal. 164.) A party cannot allege one cause of action and recover on another. (Black v. Merrill, 65 Cal. 92, 3 P. 113.) The complaint in this case is totally defective for a complaint quieting title, inasmuch as it nowhere alleges that the defendant claimed any right or interest in the ditch, but, upon the other hand, it alleged he had no interest. (Rev. Stats., sec. 4538.)

Huston & Gray, for Respondents.

It is entirely within the discretion of the court to grant or refuse a jury trial in an equity case. (Societe Francaise v. Selheimer, 57 Cal. 623; Code Civ. Proc., sec. 4365; Kopikus v. State Capitol Commrs., 16 Cal. 249; Brewster v. Bours, 8 Cal. 501; Weber v. Marshall, 19 Cal. 447; Houser v. Austin, ante, p. 204, 10 P. 37.) In equity cases, where special issues are submitted to a jury, their verdict is merely advisory to the court. (Warring v. Freear, 64 Cal. 54, 28 P. 115; Freeman v. Stephenson, 63 Cal. 499; Stockmon v. Irrigating Co., 64 Cal. 57, 28 P. 116; Bates v. Gage, 49 Cal. 126.) Mere lapse of time does not constitute an abandonment, but it may be given in evidence, for the purpose of ascertaining the intention of the parties. (Moon v. Rollins, 36 Cal. 333, 95 Am. Dec. 181; Seymour v. Wood, 53 Cal. 303; Davis v. Gale, 32 Cal. 26, 91 Am. Dec. 554.) Sale for a nominal price may be received in evidence, as tending to show abandonment. (Davis v. Gale, 32 Cal. 26, 91 Am. Dec. 554; Sieber v. Frink, 7 Colo. 148, 2 P. 901.) Failure to use the water is competent evidence of abandonment. (Davis v. Gale, 32 Cal. 34, 91 Am. Dec. 554.) A deed subsequent to abandonment is void. (Bird v. Lisbros, 9 Cal. 1, 70 Am. Dec. 617; Preston v. Keys, 23 Cal. 195.) A cross-complaint must state all the facts which would be required in an original complaint to entitle the party to affirmative relief, and it cannot be helped out by the averment of any other pleading in the action. (Collins v. Bartlett, 44 Cal. 381; Doyle v. Franklin, 40 Cal. 110; Blum v. Robertson, 24 Cal. 141; Jones v. Jones, 38 Cal. 585.) Findings of a jury in issues submitted to them in an equity case, if not objected to by motion for a new trial, cannot be questioned in the supreme court. (Duff v. Fisher, 15 Cal. 375; James v. Williams, 31 Cal. 211; Reed v. Bernal, 40 Cal. 628.) A pleading improperly designated as a "cross-complaint" will not be treated as such, so as to necessitate an answer thereto. (Harrison v. McCormick, 69 Cal. 617, 11 P. 456; Thompson v. Thompson, 52 Cal. 154; Jones v. Jones, 38 Cal. 585.)

BERRY J.

OPINION

BERRY, J.

(After Stating the Facts.)--There are numerous assignments of error in this case, but we shall not find it necessary to consider them...