Campion v. Simpson
| Decision Date | 16 February 1983 |
| Docket Number | No. 12173,12173 |
| Citation | 659 P.2d 766,104 Idaho 413 |
| Parties | Thomas B. CAMPION and Lynn H. Campion, Husband and Wife, Plaintiffs-Appellants, v. Owen SIMPSON, Defendant-Respondent. |
| Court | Idaho Supreme Court |
Robert M. Tyler, Jr. of Elam, Burke, Evans, Boyd & Koontz, Boise, for plaintiffs-appellants.
Lloyd J. Walker, Twin Falls, for defendant-respondent.
This litigation involves a reach of the Big Wood River south of the Warm Springs Bridge in Ketchum, Idaho. Campion owns a home with adjacent land on the east bank and Simpson owns property suitable for development on the opposite bank.
Prior to the late 1960's, there were three channels of the Wood River in the vicinity of the Campion-Simpson properties, the main channels being designated by the parties as channels 2 and 3 for the purpose of this action, with the third and smallest channel being designated channel 1. There was an island between channels 2 and 3 which was wooded and had been in existence for more than thirty years.
This action arises as a claim for damages and for injunctive relief by Campion by virtue of the fact that in June 1974 Campion's property was damaged by erosion and washout of the beach and river bank near his house, the loss of four or five trees near the house, and the washing away of the island and its trees which had provided Campion with a measure of privacy and seclusion.
Campion's action against Simpson is based upon Simpson having diminished the water-carrying capacity of the river system, having redirected the river directly toward Campion's property through the action of filling in and obliterating channels 1 and 2 during the period 1968-74, and Simpson's further action of re-diking his blockage of channels 1 and 2 during the June 1974 flood when the river was attempting to re-enter and discharge a portion of its volume through channels 1 and 2.
The case was initially tried before Judge Kramer, who entered findings of fact, conclusions of law and judgment, which ruled in effect that Simpson's blockage of channel 2 was tortious, that the blocking of channel 1 was not actionable, and that Campion was entitled to nominal damages in the sum of $500.00 and punitive damages of $500.00.
From that judgment, Campion appealed as to two issues: (1) that the court erred in ruling that the interference by Simpson with channel 1 was not tortious; and (2) that the court erred in failing to award substantial compensatory damages and substantial punitive damages.
After the appeal was filed, it was discovered that the court reporter had lost his notes and was unable to provide a transcript. Accordingly, at Campion's request, this court remanded to the district court (Judge Kramer thereafter disqualified himself from further proceedings) for a trial the purpose of which was to establish an evidentiary record on two limited issues: (1) the status of channel 1; and (2) the award of damages for destruction of property belonging to Campion.
The record to be so reconstructed was to be used by this court to determine the issues raised on appeal, i.e., does the evidence support the findings of fact, and is there any error in the conclusions of law and judgment entered by Judge Kramer.
The record establishes that of the thirty-three findings of fact and twenty-nine conclusions of law entered by Judge Kramer, all are supported by substantial and competent evidence with the exception of his findings and conclusions related to two areas, those being his ruling that Campion could not recover damages for the blockage by Simpson of channel 1, and his award to Campion of general and punitive damages in the amounts of $500.00 each. We will discuss each issue in turn.
With respect to channel 1, Judge Kramer found that Simpson was engaged in filling up that channel (as well as channel 2) between 1968 and 1974 and that but for the filling of those two channels, much of the spring flood waters would have flowed through those channels, and that the quantity of and velocity of the water contained in channel 3 during high water periods would have been significantly diminished but for the closing of those two channels. He further found that the alterations of channels 1 and 2 by Simpson caused the Wood River to be channeled directly against the Campion property, damaging and eroding it and causing the property to be continually exposed in the future to the direct attack of the river.
The trial court further found that Simpson's actions were intentional, that they were an interference with the public's right in and to the use of the waters of the Wood River, and the beds, channels and banks thereof, and in finding 16 stated:
"There was evidence that the Defendant [Simpson] by filling Channel 1 and Channel 2 was engaged in an intentional and systematic scheme of enlarging his land holdings, but the evidence also could be construed to be that the Defendant was protecting his property."
Despite its findings, the trial court held that Simpson's filling of channel 1 was not actionable as to Campion because channel 1 was not "navigable" and was not an integral part of the Wood River because it did not carry a substantial quantity of water the year around. In so ruling the trial court erred.
This rule was reaffirmed in Milbert v. Carl Carbon, Inc., 89 Idaho 471, 406 P.2d 113 (1965); Harper v. Johannesen, 84 Idaho 278, 371 P.2d 842 (1962); Chandler v. Drainage Dist. no. 2, 68 Idaho 42, 187 P.2d 971 (1947).
This court has not limited this rule to navigable rivers. In Milbert v. Carl Carbon, supra, we stated:
(Emphasis added.) 89 Idaho 478.
Channel 1 was a natural part of the stream system. Since the trial court found that Simpson placed an obstruction in the stream system which partially blocked it and diverted the waters against Campion's property causing damage thereto, Simpson's wrongful acts give rise to a cause of action for which Campion is entitled to damages.
The trial court awarded Campion nominal compensatory damages of $500.00
[104 Idaho 416] plus punitive damages of $500.00 based upon an erroneous assumption that Campion had the burden of proving that Simpson's actions were the "sole and proximate cause of the damage." The court's memorandum decision, incorporated by reference as a formal part of the findings and conclusions, reads in part as follows
It is not clear whether the court had reference to the fact that in large measure the flood was obviously an "act of God" or whether the court had reference to the testimony that other parties, including the City of Ketchum and Campion himself, had participated in other alterations to the river such as the construction of the Paynter Dike upstream years earlier, the reinforcement of that dike during the 1974 flood, and that alterations had been made by the City of Ketchum in constructing the bridge near the Campion-Simpson property prior to the flood.
However, neither of those reasons constitute a bar to Campion receiving full compensation against the tortfeasor he has sued.
With respect to the possible "act of God" defense, it must be noted that Simpson did not plead that defense, and had he done so it would not have constituted a defense under the rule of law enunciated by this court in Axtell v. Northern Pac. Ry. Co., Idaho 392, 398, 74 P. 1075, 1078 (1903), wherein this court stated:
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