Bright v. Virginia & Gold Hill Water Co.

• Decision Date: 07 February 1921
• Docket Number: 3481.
• Citation: 270 F. 410
• Parties: BRIGHT et al. v. VIRGINIA & GOLD HILL WATER CO.
• Court: U.S. Court of Appeals — Ninth Circuit

270 F. 410

BRIGHT et al. v. VIRGINIA & GOLD HILL WATER CO.

No. 3481.

United States Court of Appeals, Ninth Circuit.

February 7, 1921

This action was instituted by Rose Bright and others against the Virginia & Gold Hill Water Company, a corporation. There was a judgment for the defendant, on the refusal of the plaintiff to amend her complaint after demurrer to an amended complaint was sustained. Upon review this court reversed the judgment of the District Court, with directions to overrule the demurrer, with leave to the defendant company to answer. Bright v. Virginia & Gold Hill Water Co., 234 F 839, 148 C.C.A. 437. The complaint alleges that the defendant company was engaged in business in Nevada as a water company impounding, ditching, fluming, storing, and distributing water for the purposes of irrigation and domestic uses for pay; that for more than 30 years plaintiffs and their predecessors owned the land described in the complaint, and the water and water rights pertinent thereto; that for 40 years defendant, by ditches, impounding waters, and use of tanks, has diverted the waters of Marlette Lake, Nev., for mining, agricultural, and domestic uses, and permitted the water so appropriated to overflow along a natural channel to the lands belonging to Garavanto, and dug a ditch to convey the overflow away from the lands, but it gave way and damaged the lands; that Garavanto prepared to bring suit against the company for such injuries by overflow, whereupon Garavanto and the defendant company made an oral agreement, whereby Garavanto would permit the overflow waters to flow across his land, and defendant would have the right of way for the overflow waters for all the time that it would be engaged in furnishing water pursuant to articles of its incorporation and that Garavanto and his successors would have the right to divert the waters and use the same, without charge or interference, to irrigate the lands to the extent in which the overflow water then and there ran as long as defendant was engaged in the business of its incorporation and carried on its business as averred in the complaint; that in pursuance of the agreement, and in consideration of the use of the water for irrigation, Garavanto waived his right of action for damages for the injuries he had sustained, and consented that the overflow waters from the works of the defendant should run down the natural channel and ravine, and gave a right of way therefor through the lands; that in pursuance of the agreement Garavanto began to use the water, and irrigated 100 acres for 7 years, and planted crops and orchards, and increased the value of the land; that he then sold the lands to one Raffetta, through whom by mesne conveyances the premises have become vested in fee in the plaintiffs in the present action, together with the right to use the water; that under the agreement, up to the year 1913, plaintiffs and their predecessors and grantors have used the overflow water, and the same have overflowed by permission under the agreement. It is alleged that the lands are arid, and that with the consent of defendant the waters were used for 40 years in pursuant of the agreement; that in 1913 defendant cut off the water and ruined plaintiffs' crops, all in violation of the agreement and to the damage of the plaintiffs.

The defendant answered, denying the material allegations of the complaint, and putting in issue the existence of the alleged Garavanto contract, and the use and the right to the use of the water thereunder. Defendants also alleged a counterclaim for a balance on account as rental for water furnished by the defendant to plaintiffs, under an agreement or lease with plaintiffs, alleged to have been made about 10 years before 1913, and which called for delivery or let down from its works of 4 miner's inches of water during the irrigating season of each year, in consideration of which plaintiffs and their predecessors in interest agreed to pay defendant a stipulated annual rental on the 1st of July each year, and that plaintiffs owed defendant rentals for the years 1911 and 1912; that in 1913 defendant failed to furnish water, because of failure to pay the sums past due. Defendant pleaded that plaintiffs are estopped from claiming right to have the water. The plaintiffs denied the existence of any contract for water, other than that heretofore referred to in the statement of the complaint, and denied that there had been any water furnished under any agreement, except as set forth in their complaint.

The case was tried to a jury. Plaintiffs offered a witness to prove that one Overton, deceased, an officer of the defendant corporation, made the alleged Garavanto contract. The defendants objected to the testimony of such witness, on the ground that she could not testify concerning transactions had with a deceased officer of the defendant corporation. The court ruled that under the statute of Nevada such testimony was not competent and declined to receive it. After the ruling of the court plaintiffs obtained a continuance in order to prepare an amendment. When the case was again called, counsel for plaintiffs said that they would propose no amendment, having reached the conclusion that they could proceed to trial without an amendment. Defendants objected to plaintiffs proceeding under any theory other than that which had been presented at the time the continuance was given, whereupon plaintiffs' counsel announced that they were not proceeding under a new theory, but would prove the Garavanto contract, and that they intended to rely, not only upon that contract, but upon two other distinct grounds alleged in the complaint: One, the legal duty of the defendant, a public service corporation, to furnish the water without a contract; the contract called the 'four-inch contract,' set up by the defendant, 'not as a defense to this action, but merely as an estoppel against plaintiffs to rely upon the Garavanto contract. ' At the close of plaintiffs' evidence, and again at the close of all evidence, defendant moved for a directed verdict, on the ground that the evidence failed to support the claim set forth in the plaintiffs' complaint. These motions were overruled, and after instructions a verdict was rendered for the defendant, and judgment was rendered accordingly. Plaintiffs then sued out writ of error.

H. V. Morehouse and Augustus Tilden, both of Reno, Nev., for plaintiffs in error.

Cheney, Downer, Price & Hawkins, of Reno, Nev., for defendant in error.

Before GILBERT, ROSS, and HUNT, Circuit Judges.

HUNT Circuit Judge (after stating the facts as above).

The plaintiffs contend that the court erred in excluding the testimony of Mrs. Raffetta, called to prove that between 1880 and 1884, when she was living upon the ranch, which then belonged to her husband and herself, and afterwards passed to Garavanto, Mr. Raffetta and Garavanto and Mr. Overton, as superintendent of the defendant corporation, since deceased, made an oral agreement whereby the defendant corporation would give to Raffetta all the water he wanted for his ranch, provided Raffetta did not bring action to enforce damages done by overflow of one of defendant's ditches. The District Court held that under section 477 of the Nevada statute (Rev. Laws, Sec. 5419) the witness could not testify. Section 477 provides:

'No person shall be allowed to testify (1) when the other party to the transaction is dead.'

In Roney v. Buckland, 4 Nev. 56, the court, discussing an earlier, but somewhat similar, Nevada statute, said:

'The answer is obvious: Because the Legislature, doubtless, deemed it injudicious and unjust to allow a person to testify in his own behalf about a transaction when the other person actually engaged in it is unable to appear by reason of death.'

Crane v. Closter, 13 Nev. 280, and Vesey v. Benton, 13 Nev....