Carpenter v. Double R Cattle Co., Inc.

• Decision Date: 21 May 1985
• Docket Number: No. 15283,15283
• Citation: 108 Idaho 602,701 P.2d 222
• Parties: Adrian CARPENTER and Ruth Carpenter, husband and wife; John Eisenbarth and Violet Eisenbarth, husband and wife; J. Keith Jones and Patricia Jones, husband and wife; Kenneth F. Skow and Margie Skow, husband and wife; Duane Wiggins and Rosemary Wiggins, husband and wife; Gary Lewallen and Carol Lewallen, husband and wife, Plaintiff-Appellants, v. The DOUBLE R CATTLE COMPANY, INC.; the Sunnyside Feed Lot Company, Inc.; and the Idaho Feed Lot Company, Inc., Defendant-Respondents.
• Court: Idaho Supreme Court

Page 222

701 P.2d 222

108 Idaho 602

Adrian CARPENTER and Ruth Carpenter, husband and wife; John Eisenbarth and Violet Eisenbarth, husband and wife; J. Keith Jones and Patricia Jones, husband and wife; Kenneth F. Skow and Margie Skow, husband and wife; Duane Wiggins and Rosemary Wiggins, husband and wife; Gary Lewallen and Carol Lewallen, husband and wife, Plaintiff-Appellants, v. The DOUBLE R CATTLE COMPANY, INC.; the Sunnyside Feed Lot Company, Inc.; and the Idaho Feed Lot Company, Inc., Defendant-Respondents.

No. 15283.

Supreme Court of Idaho.

May 21, 1985.

Richard B. Eismann, Daniel T. Eismann, and Roderick B. Wood, Homedale, Philip H. Gordon, Council, Kent B. Power, Boise, for appellants.

Robert J. Koontz, now of Evans, Keane, Koontz, Boyd & Ripley, Boise, and Robert M. Tyler, Jr., of Elam, Burke & Boyd, Boise, for respondents.

Andrew Harrington, of Anderson, Kaufman, Anderson & Ringert, Boise, for amicus curiae.

BAKES, Justice.

Plaintiffs appealed a district court judgment based upon a court and jury finding that defendant's feedlot did not constitute a nuisance. The Court of Appeals, 105 Idaho 320, 669 P.2d 643, reversed and remanded for a new trial. On petition for review, we vacate the decision of the Court of Appeals and affirm the judgment of the district court.

Plaintiff appellants are homeowners who live near a cattle feedlot owned and operated by respondents. Appellants filed a complaint in March, 1978, alleging that the feedlot had been expanded in 1977 to accommodate the feeding of approximately 9,000 cattle. Appellants further alleged that "the spread and accumulation of manure, pollution of river and ground water, odor, insect infestation, increased concentration of birds, ... dust and noise" allegedly caused by the feedlot constituted a nuisance. After a trial on the merits a jury found that the feedlot did not constitute a nuisance. The trial court then also made findings and conclusions that the feedlot did not constitute a nuisance.

Appellants assigned as error the jury instructions which instructed the jury that in the determination of whether a nuisance exists consideration should be given to such factors as community interest, utility of conduct, business standards and practices, gravity of harm caused, and the circumstances surrounding the parties' movement to their locations. On appeal, appellants chose not to provide an evidentiary record, but merely claimed that the instructions misstated the law in Idaho.

The case was assigned to the Court of Appeals which reversed and remanded for a new trial. The basis for this reversal was that the trial court did not give a jury instruction based upon subsection (b) of Section 826 of the Restatement (Second) of Torts. That subsection allows for a finding of a nuisance even though the gravity of harm is outweighed by the utility of the conduct if the harm is "serious" and the payment of damages is "feasible" without forcing the business to discontinue.

This Court granted defendant's petition for review. We hold that the instructions which the trial court gave were not erroneous, being consistent with our prior case law and other persuasive authority. We further hold that the trial court did not err in not giving an instruction based on subsection (b) of Section 826 of the Second Restatement, which does not represent the law in the State of Idaho, as pointed out in Part III. Accordingly, the decision of the Court of Appeals is vacated, and the judgment of the district court is affirmed.

I. The Record

The appellants have the burden of showing reversible error on appeal. Error cannot be presumed on appeal, but requires an affirmative showing. Rutter v McLaughlin, 101 Idaho 292, 612 P.2d 135 (1980). Not only did the appellants not request an instruction based on subsection (b) of Section 826, Restatement (Second), appellants objected to the court giving any instructions based upon the Restatement. ¹ Additionally, the appellants did not assign as error on appeal the trial court's failure to give such an instruction based on subsection 826(b) of the Restatement (Second). Nevertheless, the Court of Appeals, apparently sua sponte, reversed for failure to give such an instruction. In so doing, the Court of Appeals erred.

Even assuming that appellants had requested an instruction based on Section 826(b) of the Second Restatement, there is no way to determine reversible error or prejudice without a complete record on appeal of the evidence at trial. In order for a nuisance to be found under Section 826(b), substantial competent evidence would have had to be presented that the harm was "serious" and that compensation for the harm was "feasible" without jeopardizing the continuance of the business. If substantial and competent evidence on these two issues was not presented at trial, then there would have been no factual basis for the trial court to give an instruction based on Section 826(b), assuming one had been requested. Appellants have not provided a transcript on appeal to document whether there was any evidence to justify such an instruction. Therefore, the judgment of the trial court should be affirmed on that basis alone. Rutter v. McLaughlin, 101 Idaho 292, 612 P.2d 135 (1980) (no error presumed based upon incomplete record).

II.

The Instructions

A

The Court of Appeals erred in relying on Yacht Club Sales & Service v. First National Bank of North Idaho, 101 Idaho 852, 623 P.2d 464 (1980), as authority for reversal. The Yacht Club rule is that "instructions which are contradictory on material matters constitute prejudicial error and require reversal." (Emphasis added.) However, the Court of Appeals did not point out any instructions given by the trial court which were "contradictory" with each other. Rather the Court of Appeals acknowledged that the instructions given were "consistent" with the First Restatement and IDJI 491:

"In short, the district judge gave the jury a set of instructions which did not conform precisely to but were consistent with, the First Restatement and IDJI 491. The court took no account of Koseris, nor the dual criteria for determining the existence of a nuisance under Section 826 of the Second Restatement. The jury was given no instruction on damage liability comparable to Section 826(b) of the Second Restatement. We conclude that the jury was improperly instructed, in light of our adoption today of the Second Restatement's criteria for determining existence of a nuisance." Carpenter v. Double R Cattle Co., Inc., 105 Idaho 320, 335, 669 P.2d 643, 657 (Ct.App.1983) (emphasis added).

The basis for the Court of Appeals reversal is that the trial court failed to instruct the jury based on the subsection 826(b) of the Second Restatement, not that the instructions were contradictory. Prior to adoption of the Idaho Rules of Civil Procedure, we held consistently that the failure to give a particular instruction which was never requested was not grounds for reversal. See Gayhart v. Schwabe, 80 Idaho 354, 330 P.2d 327 (1958); Pittman v. Sather, 68 Idaho 29, 188 P.2d 600 (1947). Our present rule, I.R.C.P. 51(a) is silent on whether a party must object to a given instruction or specifically request an instruction in order to assign as error the giving of the instruction or failure to give the instruction. However, "[t]his Court has long adhered to the rule that when the instructions given by the trial court are correct insofar as they go, one cannot complain of the failure to give additional instructions if none are requested." Holland v. Peterson, 95 Idaho 728, 730, 518 P.2d 1190, 1192 (1974). We have also recently stated that, "our cases clearly reject the notion that one may assign as error the court's instructing in language which that person has specifically requested the court to give...." McBride v. Ford Motor Co., 105 Idaho 753, 762, 673 P.2d 55, 64 (1983). A variation of this rule also precludes reversible error in this case; that is, this Court will not find reversible error in the failure to give an instruction where the appellant argued against the giving of such an instruction at trial. In this case the appellants argued at the instruction conference that no instructions should be given based upon the Second Restatement. Again on appeal, the appellants argued that the Restatements should not apply. Therefore, there was no error in the trial court's failure to instruct the jury based upon subsection 826(b) of the Second Restatement. To establish error for failure to give an instruction, it must be shown at a minimum that: the instruction was not argued against by the appellant; the instruction was a correct statement of Idaho law; and, the failure to instruct was assigned as error on appeal. None of these initial criteria in establishing error in the instructions has been met by appellant. The Court of Appeals erred in reversing the district court on the instructions.

B

The plaintiff's complaint, seeking to enjoin the operation of the feedlot, invoked the equity jurisdiction of the district court. "[E]quity having obtained jurisdiction of the subject matter of a dispute, will retain it for the settlement of all controversies between the parties...." Boesiger v. Freer, 85 Idaho 551, 563, 381 P.2d 802, 809 (1963). Clark v. Olsen, --- Idaho ---, --- P.2d ---- (1985) (Bistline, J., dissenting). Since the plaintiff's complaint invoked the equitable jurisdiction of the district court, the jury's verdict and findings would be advisory only, ² and under I.R.C.P. 52(a), the judge has the responsibility of making the ultimate findings and decision in the case, ³ which the district judge did in this case, finding that no nuisance existed. Therefore, whether or not the trial court erred in instructing the jury is immaterial since the judge, not the jury, had the responsibility for making the ultimate findings and decision in the matter. As stated by the Supreme Court of Kansas in the case of In re Roberts...