City of Payette v. Jacobsen

• Decision Date: 29 March 1937
• Docket Number: 6404
• Citation: 66 P.2d 1013,57 Idaho 524
• Parties: THE CITY OF PAYETTE, IDAHO, a Municipal Corporation, Respondent, v. ANNIE JACOBSEN, Appellant
• Court: Idaho Supreme Court

66 P.2d 1013

57 Idaho 524

THE CITY OF PAYETTE, IDAHO, a Municipal Corporation, Respondent, v. ANNIE JACOBSEN, Appellant

No. 6404

Supreme Court of Idaho

March 29, 1937

MUNICIPAL CORPORATIONS-STREETS-ACTION TO ENJOIN FLOODING-EVIDENCE-DUTY OF MUNICIPALITY-BURDEN OF PROOF-EASEMENTS-DUTY OF OWNER.

1. In suit by municipality to enjoin flooding of street with irrigation water from farm, burden was on municipality to prove that street was flooded by negligent and excessive use of water in irrigating the land.

2. In suit by municipality to enjoin flooding of street with irrigation water from farm, finding with respect to farmer's negligent use of water causing flooding of street held sustained by evidence.

3. In municipality's suit to restrain flooding of street with irrigation water, wherein farmer contended that flooding was caused by obstruction in pipe which it was municipality's duty to keep in repair and sought to require municipality to provide proper drainage, burden was on farmer to prove flooding of street was caused by defect in drain-pipe, and that municipality had duty to maintain it in proper repair so as to carry away waste irrigation water from her land.

4. It was the province of the trial judge to decide, in the first instance, whether appellant's contention that it was the city's duty to place and maintain drain-pipe in good repair so that it would carry waste water from farm lands was established by the evidence.

5. Generally, owner of an easement or right of way over lands of another must maintain it in a state of good repair and efficiency so that no unnecessary damage will result from its use to the servient estate.

6. In suit by municipality to enjoin flooding street with irrigation water from farm, failure to find on issue raised by farmer to effect that flooding of street was caused by obstruction in drain-pipe which it was municipality's duty to keep in repair, held reversible error.

APPEAL from the District Court of the Seventh Judicial District, for Payette County. Hon. A. O. Sutton, Judge.

Suit by the City of Payette to enjoin flooding a street with irrigation water from defendant's farm. Defendant answered and cross-complained alleging the flooding was due to defective condition of a pipe line installed by plaintiff to carry off water. Decree for plaintiff. Reversed and remanded with direction to make further findings and to enter decree in accordance therewith.

Reversed and remanded with instruction. Costs on appeal awarded to the prevailing party.

George Donart for Appellant.

Findings of fact are required on all material issues, and the failure of the trial court to make findings on all material issues constitutes reversible error. (Jensen v. Baumgarner, 25 Idaho 255, 137 P. 529; Story & Fawcett v. Nampa etc Irr. Dist., 32 Idaho 713, 187 P. 946; Berding v. Northwestern Securities Co., 36 Idaho 384, 211 P. 62; Guthrie v. Ensign, 36 Idaho 673, 213 P. 354.)

A municipality assumes the duty of keeping in good condition and repair all sewers or drain pipes which it installs, and a failure to perform that duty renders it liable. (McQuillin on Municipal Corporations, 2d ed., secs. 2869, p. 927, 2863, p. 914, 2868, p. 925, 2874, p. 941; Lobravico v. City of New York, 155 A.D. 184, 140 N.Y.S. 161.)

John T. Kenward for Respondent.

It is the duty of the owners of an easement to keep it in repair. (Crease v. Jarrell, 65 Cal.App. 554, 224 P. 762; Bean v. Stoneman, 104 Cal. 49, 37 P. 777, 38 P. 39.)

MORGAN, C. J. Holden, Ailshie, Budge and Givens, JJ., concur.

OPINION

MORGAN, C. J.

This suit was commenced by respondent, hereinafter called the city, to procure an injunction restraining appellant from flooding one of its streets.

It is alleged in the complaint that appellant is the owner of an irrigated farm and pasture land which adjoin the easterly side of Eleventh Street of the city, between First Avenue North and Third Avenue North therein; that on or about July 18, 1935, appellant, her agents, servants and employees, by wrongful and negligent use of water, in excess of that reasonably necessary for the irrigation of her land abutting on said street, and by failure to exercise reasonable care in the use of the water, caused it to flow and stand on Eleventh Street, between First Avenue North and Third Avenue North, resulting in the loss of use of the greater part of the street, between said avenues, for approximately forty-eight hours, and that they intend to and will flood the street each time her land is irrigated, unless enjoined from so doing.

Appellant answered admitting her ownership of the farm and pasture land, and that Eleventh Street is a duly laid out, dedicated and accepted street of the city. She denied all other allegations of the complaint, above mentioned. As a further and separate defense, and by way of cross-complaint, she alleged she and her husband, now deceased, had been the owners of said land for many years past; that, prior to the establishment of First Avenue North in the city, they owned an open ditch running along the northerly side of what is now that avenue, which was used by them to carry off all waste water from their lands, during the irrigation season of each and every year, and that it was of sufficient capacity for that purpose; that the city, desiring to close said ditch installed, or caused to be installed, a water pipe for the purpose of conducting the waste water from said land, which had previously been conducted therefrom by means of the open ditch; that during the last two or three years the capacity of the pipe, so installed by the city, had become insufficient to carry away the waste water from the land, due to the fact that it was corroded, or the free flow of the water through it had otherwise been obstructed, without fault of appellant; that by reason of the failure of the city to maintain the pipe in a proper state of repair, the flow of the waste water had been...