Bradford v. Simpson, 11857

• Decision Date: 15 December 1975
• Docket Number: No. 11857,11857
• Parties: Rosemary K. BRADFORD, Plaintiff-Respondents. v. Owen SIMPSON, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 612

541 P.2d 612

97 Idaho 188

Rosemary K. BRADFORD, Plaintiff-Respondents. v. Owen SIMPSON, Defendant-Appellant.

No. 11857.

Supreme Court of Idaho.

Dec. 15, 1975.

Lloyd J. Walker of Walker & Kennedy, Twin Falls, for defendant-appellant.

E. Lee Schlender of Schlender & Young, Ketchum, for plaintiff-respondent.

DONALDSON, Justice.

Plaintiff-Respondent Rosemary K. Bradford filed this action November 1, 1972. In her complaint she alleged that defendant-appellant Owen Simpson trespassed upon certain property belonging to her and interfered with her access to the shoreline of the Big Wood River adjacent to her property. Following trial, the district court entered Findings of Fact and Conclusions of Law together with judgment on December 10, 1974, awarding plaintiff $21,000.00 in compensatory damages, $25,462.89 in punitive damages, and attorney's fees and enjoining defendant from any interference with plaintiff's property rights. Defendant moved the district court for a new trial, to amend the judgment, for relief from judgment, to amend Findings of Fact and Conclusions of Law and to strike certain affidavits. Defendant appeals from the judgment and from the amended order denying his motions.

The subject property had been owned by defendant for many years and was platted in 1964 as the 'Sun Valley Subdivision of the City of Ketchum' and later revised as the 'Sun Valley Subdivision, First Addition, Revised.' In 1964 Lots 16, 17, and 18 were sold separately to three individuals. On September 19, 1969, plaintiff purchased all three lots for $7,000 each. Plaintiff's lots were deeded to her by warranty deeds which described them by lot and block number of the subdivision.

The east side of all three lots abutted on the west bank of the Big Wood River, with lot 18 the northernmost or upstream lot. Opposite Lot 18 the Big Wood River divided into two channels, flowed around a long island and rejoined considerably downstream from Lot 16. The western branch of the river was the smaller but flowed year round.

The trial court found that commencing in November of 1968, the defendant, using a caterpillar tractor and bulldozer began filling the west channel of the river. By September of 1971 this channel had ceased to flow and a dike extended from plaintiff's Lot 18 to the northern end of what had been the island between the two channels. This dike, the trial court found, eliminated plaintiff's river frontage and created an area of reclaimed land where the river had once been, and which defendant now claimed as his own.

By the time of trial, a 1974 flood had restored the old shoreline in front of plaintiff's lots and washed away the island as well. The defendant, however, constructed a berm from the southernmost point of Lot 16, apparently to protect other lots from flood water. There was also some evidence of flood damage to plaintiff's property caused by riprap placed upstream.

On appeal appellant alleges as his first assignment of error that the trial court erred when it relied on evidence adduced at a preliminary proceeding but never admitted at trial. It appears from the record that trial was originally set for June 12, 1974 in the district court in Blaine County. Because of another trial, however, the courtroom was not available on that date. Nevertheless, a proceeding was had in another room of the courthouse wherein the trial court took testimony from plaintiff and two of her out-of-state witnesses and admitted certain exhibits. Further proceedings were scheduled for June 25, 1974. This setting was postponed, however, when a conflict developed between defendant and his counsel and new counsel were retained. A final hearing was had on October 24, 1974.

Appellant contends that the June 12, 1974 proceeding was preliminary and in the nature of a procedure to perpetuate testimony. Since none of the testimony or exhibits were formally introduced as evidence in the later proceeding, he argues they are not competent evidence and he was under no obligation to offer evidence in rebuttal. Appellant point to the opening remarks of the trial court on June 12, where it characterized the procedure as a preliminary proceeding solely 'for the purpose of perpetuation of testimony.' In addition, the trial court stated that 'opening statements and calling of witnesses on the case in chief both of the plaintiff and of the defendant will be reserved for the time when the trial of the case actually takes place * * *.'

The nature of the June 12 proceeding is not clearly established by the record While the opening remarks of the trial court support the appellant's position the court closed the proceeding by remarking that the court was 'in recess.' The fact that exhibits were admitted and that objections were made and ruled on by the court are more characteristic of a trial than a deposition. Defendant was allowed full cross-examination of all plaintiff's witnesses.

Although defendant-appellant's pressent counsel did not represent him on June 12 they were certainly aware of the proceeding. On July 10, 1974, soon after they were retained, they represented defendant at a hearing on plaintiff's motion to tax costs and expenses incurred when the June 25 trial setting was postponed. At the conclusion of that hearing the trial court sought to arrange a new setting in October. The following colloquy ensued:

'THE COURT: Yes, that's right Now, will two days suffice without having to go back over those witnesses?

'MR. SCHLENDER: Yes.

'THE COURT: All right.

'MR. WALKER: May I ask, Your Honor, am I bound by what has happened so far as Oliver Martin?

'THE COURT: You mean his testimony and the testimony already taken?

'MR. WALKER: Yes.

'THE COURT: Mr. Laggis at that time was Mr. Simpson's attorney of record, and it was perpetuated and cross examined in his presence. You will be bound by it unless you want to subpocna him as your witness.

'MR. WALKER: They are in California. October would be fine, Your Honor.'

Since appellant chose not to subpoena these witnesses he is bound by the testimony and exhibits adduced on June 12. Where he consented to be bound he cannot now complain.

Appellant next alleges the trial court erred when it admitted photographs that were not competent evidence because not corroborated by the testimony of witnesses. He claims the court erred where its conclusions were based solely on such pictures. However, appellant does not specify which photographs were improperly relied upon nor does he direct us to the Findings of Fact or Conclusions of Law based on these photographs. 'It has been uniformly held by this court that it will not review an assignment which does not point out the particulars in which the alleged error consists.' Bloxham v. Robinson, 67 Idaho 369, 181 P.2d 189 (1947). Even if well founded, appellant's assignments must be directed to particular error in the record.

In a further assignment of error appellant claims that the trial court viewed the subject property without the permission or presence of the parties. Such a view, he claims, constitutes reversible error. In support of his claims he directs our attention to the affidavit of his counsel filed December 19, 1974, along with his motion for a new trial. The affidavit reads in part as follows:

'During the period between the initial reception by the court of testimony in this matter and the later portion of the bifurcated trial, Judge Theron W. Ward, presiding in this matter, stated to me that he had viewed the property and the adjacent area.'

In Lobdell v. State, 89 Idaho 559, 407 P.2d 135 (1965), this Court found that the trial court erred where it entered findings based on a view of the premises when such inspection was made without notice to the parties. In the present case there is no evidence of such a view by the trial court either in the transcript or in the Findings of Fact and Conclusions of Law. Although appellant was allegedly aware of the view well before the trial had ended he did not raise the matter until after judgment had been entered. A timely objection would have given the trial court ample time to correct any error. Cf. Highbarger v. Thornock, 94 Idaho 829, 498 P.2d 1302 (1972). '[C]ounsel may not secretly nurture an error, speculate upon a favorable verdict, and then, in the event it is adverse, bring forth the error as a life preserver on a motion for new trial.' Agranoff v. Morton, 54 Wash. 341, 340 P.2d 811 (Wash.1959). Furthermore, it is well settled that an affidavit executed in support of a motion for new trial cannot be used to establish facts which should have been but were not made part of the record in the district court. Such purported error should have been raised at the time it was allegedly discovered. Hayward v. Yost, 72 Idaho 415, 424, 242 P.2d 971 (1952); Carey v. Lafferty, 59 Idaho 578, 583, 86 P.2d 168 (1938).

Appellant makes several assignments of error concerning the trial court's findings on the boundary issue. Common to each assignment is the assertion that the trial court erred by varying respondent's boundary from that established by the recorded plat. According to appellant 'the plaintiff-respondent must move her boundaries to make her case.' Appellant concludes that since the evidence admitted at trial concerned only his activities outside of the platted boundaries there was no evidence of any trespass to her property. Since resolution of this issue is dispositive of each of his assignments...