Casey v. Nampa and Meridian Irr. Dist.

• Decision Date: 25 February 1963
• Docket Number: No. 9095,9095
• Citation: 85 Idaho 299,379 P.2d 409
• Parties: Elmer E. CASEY and Myrtle Casey, husband and wife, Lewis W. Groom, and Lucille Groom, husband and wife, and Beth Blddick, a single woman, Plaintiffs-Respondents, v. NAMPA AND MERIDIAN IRRIGATION DISTRICT, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 409

379 P.2d 409

85 Idaho 299

Elmer E. CASEY and Myrtle Casey, husband and wife, Lewis W. Groom, and Lucille Groom, husband and wife, and Beth Blddick, a single woman, Plaintiffs-Respondents, v. NAMPA AND MERIDIAN IRRIGATION DISTRICT, Defendant-Appellant.

No. 9095.

Supreme Court of Idaho.

Feb. 25, 1963.

Anderson, Kaufman & Anderson, C. Ben Martin, Boise, for appellant.

Grant L. Ambrose, Meridian, Glenn A. Coughlan, Boise, for respondents.

McFADDEN, Justice.

The plaintiffs instituted this action seeking damages from the defendant for injury to their lands and for damages for loss of crops.

Plaintiffs Groom and wife are in possession of the real property, the subject of this action, which is situate a short distance west of Meridian. The Grooms, who are purchasing a portion of the property from Casey and wife, are leasing the rest of the property from plaintiff Biddick, and are farming both tracts. The defendant irrigation district is charged with negligently allowing water to overflow the banks of its lateral known as the Rutledge ditch, onto the plaintiffs' lands, causing damage to the land for the years 1956, 1957, 1958 and 1959 of a permanent nature. Damages are claimed for crop injury on the Biddick property for the year 1959, and on the Casey-Groom property for the years 1959 and 1960. The jury awarded damages to plaintiff Biddick in the amount of $206.00 and to plaintiffs Casey & Groom for $856.30; judgment was entered accordingly. Defendant moved for a new trial, and upon denial of this motion, this appeal was taken from the judgment and from the order denying the new trial.

The Biddick and the Casey-Groom lands are adjoining. The Biddick land lies to the west of the Casey-Groom tract, and both tracts are bounded on the north by a county road, and on the south by the Union Pacific Railroad right of way. To the north of this right of way the defendant district owns the so-called Rutledge lateral or canal, from which the water overflowed. On the north bank of the canal there is an inspection and maintenance road. Next to the road, on its north, there is a field ditch used to irrigate the Biddick property. The Biddick property is bounded on the west by another county road. A low area or swale runs northwesterly across the fields, with its fall from the southeast to the northwest.

During each of the 1956, 1957, and 1958 irrigation seasons, the Rutledge lateral or canal overflowed onto about 3.7 acres of the Groom-Casey land, and 4 acres of the Biddick land. In 1959 the canal overflowed onto the same areas on two occasions. Moss had been allowed to accumulate in the canal causing the water level to raise, overflowing the banks, which, with the failure to properly maintain the canal and its banks, is charged as the negligence which caused the flooding and resultant damages. There is no question as to the fact of the floodings. However there is a difference of opinion between the defendant district and the plaintiffs as to the cause of the flooding, and whether the defendant district was negligent. It is sufficient to say that the record discloses ample evidence from which the jury could have found negligence on the part of the defendant district in allowing moss to accumulate and failing to maintain the banks causing the canal to overflow. While defendant contends that maintenance of the canal banks was made impossible by seepage from gopher holes along the Biddick field ditch, the jury, by its verdict, found against this contention of the defendant. There being evidence to sustain the verdict on the issues of negligence, it will not be disturbed by this court. Zenier v. Spokane International Railroad Co., 78 Idaho 196, 300 P.2d 494.

A more serious problem is presented, however, in resolving the issue presented by this appeal as to the sufficiency of the evidence to sustain the amount awarded by the jury to the respective parties. Appellant assigns as error the refusal of the trial court to withdraw from consideration by the jury the issue of damage to the land of the parties. In Young v. Extension Ditch Co., 13 Idaho 174, 182, 89 P. 296, 298, this court stated:

'If the land is permanently injured, but not totally destroyed, the owner will be entitled to recover the difference between the actual cash value at a time immediately preceding the injury and the actual cash value of the land in the condition it was immediately after the injury, with legal interest thereon to the time of the trial.

'If the land is temporarily but not permanently injured, the owner is entitled to recover the amount necessary to repair the injury and put the land in the condition it was at the time immediately preceding the injury, with legal interest thereon to the time of the trial.'

Plaintiff Groom testified that in his opinion his and the Biddick land was depreciated in value by at least $100.00 per acre as a result of the repeated floodings. He testified: 'Well, it (flooding) would cause your land to get hard and cause it to sour. It caused slick spots to come up in the land.' Plaintiffs' witness French testified that flooding deteriorates the land; 'Well, it sours, it runs together and it tightens the soil down;--It runs together; it isn't as fertile.' This evidence was sufficient from which the jury could reasonably have inferred that the damage to the land was of a permanent nature, and depreciated the value of the property.

As to the damages for injury to the crops on the lands of the respective plaintiffs the flooded land was all planted to wheat in 1959. The first flooding in 1959 was prior to the harvest of the wheat, and the second flooding was subsequent to the time the wheat was harvested. The effect of the flooding on the maturing wheat was described by plaintiff Groom:

'The grain was just heading when the water hit it, and when the water came out on it in that area the grain just laid right down----

'Well when the grain goes down, it can't fill, and what does fill will be little shriveled kernals; the grain can't blossom and fill, and there will be a big percent of the heads some of them won't have anything in them, and some of them will be half-filled, and those that are clear on the bottom, they won't have anything in them, and farther up on the top there will probably be some in those.'

He further testified that the normal yield of wheat on the flooded area (4 acres on Biddick, 3.7 acres on Casey-Groom) was reduced twenty-five bushels per acre. The market value of the wheat was established by the sales slips of the wheat actually harvested and sold by plaintiff Groom from the remaining land.

This court is committed to the rule that the measure of damages for injury to a growing crop is the difference between the value of the crop actually raised upon the land and the crop which would have been raised upon it under normal conditions for the year in question, less the cost of maturing, harvesting and marketing such additional portion of the crop,--the difference in value between the probable yield and the actual yield, less the probable cost of placing the additional crop in a marketable condition and marketing it. Kingsbury v. Bacon, 38 Idaho 701, 224 P. 438; Mahaffey v. Carlson, 39 Idaho 162, 228 P. 793; Risse v. Collins, 12 Idaho 689, 87 P. 1006. The reasoning sustaining this rule is well stated in Kingsbury v. Bacon, supra, wherein total loss of crops are discussed:

'* * * It stands to reason, however, that compensation for the injury is the end to be attained. In the natural course the crop would have matured and been harvested. It would then have had an actual market value. To award the owner such actual market value would more than compensate him for his loss, and such an award could not be sustained, because had the crop matured, the owner would have been put to the expense of harvesting it; the destruction of the crop obviated the necessity...