Bradford v. Simpson
Decision Date | 04 January 1978 |
Docket Number | No. 12340,12340 |
Citation | 98 Idaho 830,573 P.2d 149 |
Parties | Rosemary K. BRADFORD, Plaintiff-Respondent, v. Owen SIMPSON, Defendant-Appellant. |
Court | Idaho Supreme Court |
Lloyd J. Walker of Walker & Kennedy, Twin Falls, for defendant-appellant.
E. Lee Schlender of Schlender & Young, Ketchum, for plaintiff-respondent.
The defendant Owen Simpson appeals from a judgment entered by the district court following proceedings on remand from an earlier appeal to this Court. Bradford v. Simpson (Bradford I), 97 Idaho 188, 541 P.2d 612 (1975). We affirm the judgment of the district court.
In the earlier appeal we concluded that the defendant was liable for flood damage to the plaintiff's property located adjacent to the Big Wood River in Blaine County, but reversed the district court's award of damages and remanded the case to the district court for further proceedings on the issue of damages. We also set aside an award of punitive damages stating that such an award must await the trial court's determination of compensatory damages.
On remand the parties introduced extensive expert testimony concerning the damages to the plaintiff's property as a result of the defendant's activities. After hearing the testimony the trial court concluded that as a result of the defendant's conduct the plaintiff's lots 17 and 18 have lost approximately 645 square feet of area containing 71.7 cubic yards of soil from erosion and are still subject to continuous erosion, that the lots can never be restored to their former condition and that riprapping to prevent continued erosion will cost $20,703.34. The court further found that the lots in their present condition have a combined value of $10,000, but had a combined value of $34,500 prior to the flood damage. The trial court found that the defendant's acts were responsible for 90% of the damage to the plaintiff's property and awarded the plaintiff $18,633, 90% of the cost of preserving her property, as compensatory damages. 10% of the damage was attributable to other upstream erosion control work performed by a person not a party to this lawsuit. The trial court also awarded $9,162.89 punitive damages to the plaintiff, a sum equal to her special costs and attorney fees in both proceedings.
In this appeal the defendant argues that the trial court erred in awarding the plaintiff $18,633 damages for erosion control riprapping along the river bank in front of her lots. The defendant contends that if any riprapping is necessary along that portion of the river, it has already been provided for in the prior action, Campion v. Simpson, No. 5918 (5th District Court, order entered January 6, 1976), in which action the court ordered the Idaho Department of Lands to provide the necessary erosion control work on approximately 300 feet of river bank and the court further ordered that the defendant Simpson pay the expense for such erosion control. However, in the present action the plaintiff Bradford disputed Simpson's claim that the erosion control to be performed by the Idaho Department of Lands in the Campion v. Simpson case would reach to her property. The trial court ruled that it would not, and permitted the plaintiff to prove her damages for erosion control riprapping on the portion of the river fronting her lot.
The defendant contends that the trial court erred in its finding that the erosion control ordered to be performed by the Idaho Department of Lands in the Campion v. Simpson case would not extend in front of the plaintiff's three lots. In support of his argument, the defendant introduced in evidence a plan prepared in connection with the Campion v. Simpson case, supra, for opening a channel, which had been filled in by the defendant, in the Big Wood River downstream of the plaintiff's property. Also introduced in evidence was an application by the Idaho Department of Lands to the Idaho Department of Water Resources for a permit "to open channel filled illegally by Owen Simpson per order of district court, . . . ." The application describes the section of the stream to be altered as: "Adjacent to Sun Valley Subdivision, First Addition, and SENE (1/16th section of lot no.) of Section 13, Township 4 North, Range 18 East, B.M. in Blaine County." The application also states that the length of the channel or area involved in the alteration is 300 feet. Attached to the application is a small map of the area depicting the section of the river to be opened. According to the map the channel to be opened is downstream of the plaintiff's lots, although it is possible that a few feet of the channel to be opened may be immediately opposite the southernmost end of the plaintiff's lot 16, the southernmost lot. Also attached to the application is a letter to the Department of Lands from the Department of Water Resources granting the permit sought in the application on the condition that "the applicant shall be responsible for stabilizing the eroded areas after the first runoff season with rock riprap protection conforming to the department's minimum standards."
Michael Steele, regional supervisor of the Department of Water Resources, testified concerning the state's work in this area of the river:
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