Call v. Coiner

• Decision Date: 06 December 1926
• Citation: 43 Idaho 320,251 P. 617
• Parties: EDWIN L. CALL and LOUISE J. CALL, Appellants, v. OTIS E. COINER, Respondent
• Court: Idaho Supreme Court

251 P. 617

43 Idaho 320

EDWIN L. CALL and LOUISE J. CALL, Appellants, v. OTIS E. COINER, Respondent

Supreme Court of Idaho

December 6, 1926

OWNERSHIP IN IRRIGATION DITCH-INJUNCTIVE RELIEF-PLEADING-EVIDENCE-INSTALATION OF MEASURING DEVICE-MEASURE OF DAMAGES TO GROWING CROPS.

1. Plaintiffs claiming to be owners of irrigation ditch and seeking injunctive relief against defendant's use thereof had burden of establishing in themselves exclusive ownership and right to possession.

2. Evidence held to warrant finding the plaintiffs were not entitled to exclusive ownership of irrigation ditch irrespective of defendant's interest therein, justifying refusal to perpetually enjoin defendant's use.

3. Where defendant did not plead adverse possession as to irrigation ditch nor introduce any evidence of instrument in writing to support alleged title by purchase, finding that defendant was co-owner in ditch was erroneous.

4. Trial court properly ordered instalation of device to measure waters which plaintiffs and defendant were accustomed to use after finding of limited vested right in plaintiff and legal possession in defendant.

5. Measure of damages for injury to growing crops is difference in value of crops before and after injury.

6. In absence of evidence as to extent of injury to growing crops jury properly awarded nominal damages.

APPEAL from the District Court of the Sixth Judicial District, for Lemhi County. Hon. Ralph W. Adair, Judge.

Action for injunctive relief and damages. Injunctions denied and judgment for plaintiffs in the sum of one dollar. Affirmed.

Judgment affirmed. Costs to respondent.

Whitcomb, Cowen & Clark and John H. Padgham, for Appellants.

Adverse possession must be specially pleaded. (1 R. C. L. 686, note 6; Coleman v. Hines, 24 Utah 360, 67 P. 1122, 15 L. R. A., N. S., 1189, note V; Miller v. Donovan, 11 Idaho 545, 83 P. 608.)

The burden of proof is upon the defendant to prove the allegations contained in his affirmative defense setting up title by prescription. (American Co. v. Bradford, 27 Cal. 360; Evans v. Welch, 29 Colo. 355, 68 P. 776; Strong v. Baldwin, 137 Cal. 432, 70 P. 288.)

Using a ditch that is an appurtenance to the water right at times or in manner so as not to interfere with plaintiff's right would not constitute adverse use. (1 Wiel on Water Rights, 484, sec. 456; Hall v. Blackman, 8 Idaho 272, 68 P. 19; Brossard v. Morgan, 7 Idaho 215, 61 P. 1031; Pence v. Shivers, 40 Idaho 181, 232 P. 568; Talbott v. Butte City Water Co., 29 Mont. 17, 73 P. 1111.)

Mere possession initiates no title, and does not constitute even prima facie evidence of title. (Breon v. Robrecht, 118 Cal. 469, 62 Am. St. 247, 50 P. 689, 51 P. 33; Dothard v. Denson, 72 Ala. 541; Normant v. Eureka Co., 98 Ala. 181, 39 Am. St. 45, 12 So. 454; Rae v. Miller, 99 Iowa 650, 68 N.W. 899; Smeberg v. Cunningham, 96 Mich. 378, 35 Am. St. 613, 56 N.W. 73, 15 L. R. A., N. S., 1226, note b.)

L. E. Glennon, for Respondent.

"In an action to quiet title the burden rests upon the plaintiff to show title in himself, and if he fails to make out a case he is not entitled to recover." (Sutherland, Code Plead., Prac. & Forms, sec. 6207; Winter v. McMillan, 87 Cal. 256, 22 Am. St. 243, 25 P. 407; Heney v. Pesoli, 109 Cal. 53, 41 P. 819; Head v. Fordyce, 17 Cal. 149; Keller v. McGilliard, 5 Cal.App. 395, 90 P. 483; Shelton Logging Co. v. Gosser, 26 Wash. 126, 66 P. 151.)

"A party's right is limited to the object for which it was acquired, and another party may acquire another right for similar or other purposes, not conflicting with the prior right." (Sutherland, Code Plead., Prac. & Forms, sec. 6201; Hoffman v. Stone, 7 Cal. 46; O'Keiffe v. Cunningham, 9 Cal. 589; Nevada County & Sac. Canal Co. v. Kidd, 37 Cal. 282.)

"A decree quieting title cannot be given where no conflict of claim is shown." (Sutherland, Code Plead., Prac. & Forms, sec. 6255; Mason v. Long, 49 Wash. 18, 94 P. 646.)

"The measure of damages for the destruction of a growing crop is the value of the crop at the time it was destroyed." (Kingsbury v. Bacon, 38 Idaho 701, 224 P. 438.)

"And, if only injured, is the difference in value before and after the injury." (Mahaffey v. Carlson, 39 Idaho 162, 228 P. 793.)

"Nominal damages are recoverable for a breach of contract where there is no proof of actual damage." (O. A. Olin Co. v. Lambach, 35 Idaho 767, 209 P. 277.)

T. BAILEY LEE, J. Wm. E. Lee, C. J., and Budge, Givens and Taylor, JJ., concur.

OPINION

T. BAILEY LEE, J.

Plaintiffs, claiming to be the owners of a certain ditch employed for the irrigation of their lands, complained that the defendant was wrongfully and without right therein dumping into the south fork of said ditch irrigation waters of his own, conveying them some distance therethrough, taking out more water than he put in, and generally embarrassing plaintiffs' operations by crowding them out of their own ditch, and preventing them from maintaining a sufficient water head. They sued for an injunction perpetually restraining defendant from using such ditch, and through a second cause of action sought damages suffered from the alleged flooding of their land and crops by defendant. The defendant substantially denied plaintiffs' allegations and affirmatively plead that the ditch in question had been originally constructed for irrigating lands exclusive of any of plaintiffs', and that he and his predecessor in interest had used it continuously every irrigation season since the year 1914, openly, notoriously and without let or hindrance from anyone. He filed no cross-complaint, and simply prayed that plaintiffs recover nothing and that the complaint be dismissed.

The cause was tried before the court and judgment and decree were entered in plaintiffs' favor awarding them $ 54 damages, and the injunctive relief prayed for. Later, a new trial having been granted defendant, it was stipulated that the evidence taken at the former trial should be considered by the court in the determination of the first cause of action, some new testimony was introduced in support thereof, and the issue of damages was submitted to a jury. A verdict of one dollar was returned against defendant, and the court found that plaintiffs had no right to use said ditch to the exclusion of defendant, but that plaintiffs and defendant were joint and several owners therein, each entitled to convey therethrough waters for the irrigation of their respective lands. The court further found that for more than five years prior to the commencement of the action, the defendant had used the ditch under a claim of right, openly, notoriously and adverse to plaintiffs. Judgment was entered in conformity, ordering the parties to instal a measuring device, enjoining each from interfering with the complete enjoyment of the other's respective rights in the ditch, enjoining defendant from interfering with plaintiffs' diversion of waste water from defendant's land, and directing the respective parties to pay their own costs except defendant's costs in the second trial, which were to be taxed to plaintiffs.

Plaintiffs appealed and assigned divers specifications of error, many of which were immaterial to a final determination. Defendant having filed no cross-complaint praying affirmative relief the primary matter to be considered is whether or not plaintiffs have sustained the allegations of their complaint. The burden was upon them to establish in themselves the exclusive ownership and right to possession. To do this they introduced certain deeds conveying them their lands "together with all . . . . water rights, ditches and the improvements erected upon said lands belonging thereto, or used in connection therewith." No evidence was introduced to show that the original grantors were the sole and exclusive owners of the ditch conveyed. On the contrary, the evidence showed that the portion of the ditch in question...