Candler v. Washoe Lake Reservoir & Galena Creek Ditch Co.

• Decision Date: 28 April 1905
• Parties: CANDLER et al. v. WASHOE LAKE RESERVOIR & GALENA CREEK DITCH CO.
• Court: Nevada Supreme Court

80 P. 751

28 Nev. 151

CANDLER et al. v. WASHOE LAKE RESERVOIR & GALENA CREEK DITCH CO.

Supreme Court of Nevada

April 28, 1905

Appeal from District Court, Washoe County; M. A. Murphy, Judge.

Action by Mrs. C. I. Candler and another against the Washoe Lake Reservoir & Galena Creek Ditch Company. From a judgment for plaintiffs and from an order denying a new trial, defendant appeals. Appeal from judgment dismissed, and appeal from order affirmed on condition.

Mack & Farrington, for appellant.

Cheney Massey & Smith, for respondents.

NORCROSS J.

This action was brought by the respondents against appellant for damages in the sum of $2,000 for breach of the conditions upon the part of appellant of a written contract to supply respondents with 50 inches of water for irrigation, which breach resulted in the loss of respondents' wheat and pasture crops for the year 1902, and the destruction of a considerable part of a stand of alfalfa and timothy upon the lands of respondents situated in sections 14 and 23, T. 18 N., R. 20 E., in Washoe county. Appellant denied liability for, and also the amount of, the alleged damage. The case was tried before the court without a jury, and respondents were awarded a judgment against appellant for the sum of $675.13. A motion for a new trial was made by appellant in the lower court, and upon the hearing of the motion the court determined that it had erroneously allowed as a portion of the damages the sum of $150, an amount which represented the wages paid an irrigator. Respondents consented to a reduction of the judgment by striking out therefrom the said sum of $150, and, the judgment being so modified, the court overruled the motion for a new trial. From the judgment and from the order denying the motion for a new trial, defendant has appealed.

Counsel for respondents have moved to dismiss the appeal from the judgment upon the ground that the appeal was not taken within one year after the judgment was entered, as required by Comp Laws, § 3425. Final judgment in this case was pronounced by the trial court on the 29th day of June, 1903, and entered by the clerk in said cause on the 7th day of July following. The appeal was taken on the 19th day of September, 1904. The appeal from the judgment, not having been taken within one year from the time it was rendered by the trial court, is dismissed. Solomon v. Fuller, 13 Nov. 276; Kehoe v. Blethen, 10 Nev. 453; Comp. Laws, § 3425.

The motion for a new trial was made upon several grounds, only one of which has been urged upon this appeal, to wit "insufficiency of the evidence to justify the findings and decision of the court, and that the decision is against law." The assignments of error do not include any general assignment to the effect that "the decision or judgment of the court is not supported by the evidence, or is contrary to the evidence," as provided may be done in Comp. Laws, § 3292, but a number of particulars are specified in which it is alleged "the evidence is insufficient to sustain the findings and decision of the court." This court's consideration of the evidence therefore will be limited to such portions only as refer to the particulars specified in which it is claimed the evidence is insufficient.

The material part of the contract between the parties to this action, in so far as it affects questions presented on this appeal, is as follows: "This agreement, made and entered into this 4th day of January, A. D. 1899, between the Washoe Lake Reservoir and Galena Creek Ditch Company, a corporation *** the party of the first part, and W. M. Candler, *** the party of the second part, witnesseth: That the said party of the first part, for and in consideration of the covenants on the part of the said party of the second part, hereinafter contained, hereby covenants with the said party of the second part, that the said party of the first part will furnish to said party of the second part, his heirs or assigns, one hundred inches of water on section twenty-two, township 18 N., R. 20 E., in Washoe County, Nevada, to be designated by the party of the second part on the line of that certain ditch known as the Candler Ditch, during the irrigating season of each year for the period of three years; and fifty inches of water from and after the expiration of the said three years delivered on section 14 near the line of section 23 at a point to be designated on the line of the Candler Ditch during the irrigating season of each year. *** And the said party of the second part, in consideration of the covenants on the part of the first party hereinbefore contained, agrees to and with the said party of the first part, that the said party of the second part will pay to the said party of the first part, or its order, the sum of two dollars and fifty cents per inch for all water furnished by said party of the first part to the said party of the second part to irrigate the first crop raised by the said party of the second part, and two dollars and fifty cents per inch for water furnished by the said first party to said second party to irrigate the second crop raised by said party of the second part, during the irrigation seasons of each year." It has been strenuously urged by counsel for appellant that the evidence and the provisions of the contract show conclusively that the appellant never agreed to supply water for use on section 23, and hence that appellant could not be mulcted in damages for loss of crop on said section. This contention does not seem to have been urged upon the trial of the cause, and it is questionable, under the assignments of error, if appellant is now in position to make it. Without passing upon the question of appellant's right to present the question, we cannot agree with counsel in the construction they place upon this contract. It is clear, we think, that the provision of the contract requiring appellant to deliver respondents 50 inches of water "on section 14, near the line of section 23 at a point to be designated on the line of the Candler ditch," was only intended to fix the place of delivery, and that the water, being thus delivered to respondents, was theirs to conduct upon whatever lands they could conveniently use the same upon for irrigation purposes. It was therefore no concern of appellant upon what lands the water should be so used.

Several alleged errors have been assigned which will not be considered, as they have not been presented in the briefs of appellant's counsel or in the oral argument. Gardner v. Gardner, 23 Nev. 213, 45 P. 139; Allison v Hagan, 12 Nev. 38. The following particulars are specified in which it is claimed the evidence does not support the decision of the court, and are all that require consideration: "(2) The court made no allowance for the hay and wheat which Candler cut and used from the land to which the water was supplied by defendant." "(4) The court made no allowance for the expense of raising, maturing, threshing, and marketing crops that the court held would have grown upon said land had sufficient water been supplied, but gave plaintiffs judgment for all that said crop would have brought in the market without deducting the expense of maturing and marketing the same." "(10) There is no evidence to support that part of the finding of paragraph 5 that finds that the failure and refusal of defendant to...