City of Twin Falls v. Harlan

• Decision Date: 02 October 1915
• Citation: 27 Idaho 769,151 P. 1191
• Parties: CITY OF TWIN FALLS, Respondent, v. GEORGE E. HARLAN, Appellant
• Court: Idaho Supreme Court

151 P. 1191

27 Idaho 769

CITY OF TWIN FALLS, Respondent, v. GEORGE E. HARLAN, Appellant

Supreme Court of Idaho

October 2, 1915

CITY ORDINANCE-NUISANCE-DITCH IN STREET-COVERING OF-RIGHT OF WAY FOR DITCH-EXTENSION OF CITY LIMITS-AUTHORITY OF CITY COUNCIL-ESTOPPEL.

1. Where a ditch is constructed under a contract with the state to reclaim certain lands included in a Carey Act Irrigation project, and thereafter a town or city extends its limits so that one of the streets of such extension is so platted as to include such ditch, and thereafter the city council passes an ordinance requiring such ditch to be covered and declaring it to be a nuisance if not covered, such ordinance held invalid when applied to the ditch in question.

2. Held, that the city of Twin Falls as a municipality of the state has not the power or authority to declare a ditch constructed under the laws and supervision of the state a nuisance.

3. Under the provisions of sec. 3659, Rev. Codes, nothing which is done or maintained under the express authority of the statute can be deemed a nuisance.

4. Where a ditch has been constructed and operated in accordance with the law, it is not a nuisance, and can only become one by reason of the manner in which it has been maintained and operated; and the fact that a municipality subsequently extends a street along and includes in it the right of way for such ditch does not convert such ditch into a nuisance.

5. Because a city fails to perform a duty that devolves upon it a person cannot be punished for a condition resulting from such nonperformance.

6. Held, under the facts of the case and the law, that it was the duty of the city to cover said ditch if it was considered dangerous, or otherwise to protect the people from such danger.

7. Held, that a ditch or canal that was constructed prior to the time that a town or city was located along it occupies substantially the same position with reference to the city and its inhabitants as would a natural stream.

8. A right conferred or protected by the law cannot be overthrown or impaired by any authority of the city council derived from the police power.

9. Held, that the ditch in question is maintained and operated by the company in the usual manner, and that no unusual conditions exist, and nothing is shown to be harmful or dangerous aside from the fact that people live near it and may fall into it.

10. Held, that the duty to cover said ditch devolves upon the city, and that the city cannot impose such duty on the canal owner by declaring said ditch a nuisance.

11. Where a trial court judicially declares a thing to be a nuisance, its judgment is subject to review on appeal the same as any other judgment it may render.

12. Held, that because of the change made in that part of said ditch that runs through the Murtaugh Addition and the consent thereto by the city, the doctrine of estoppel is applicable to said city, and that the covering of said ditch through said addition is a matter between the city and the person who made the change.

13. The general power of a city to declare, prevent or abate a nuisance does not include the power to declare anything a nuisance which is not one in fact nor one per se.

APPEAL from the District Court of the Fourth Judicial District for the County of Twin Falls. Hon. Edward A. Walters, Judge.

The defendant, as manager of the Twin Falls Canal Company, was tried and found guilty of maintaining a nuisance by maintaining a ditch in one of the streets of the city of Twin Falls. Reversed.

Reversed and remanded with instructions. Costs awarded to appellant.

A. M Bowen, for Appellant.

The lateral in question, as a part of the Twin Falls canal system, was constructed under the supervision of the state officials and by authority of the state statutes. (Hanes v. Idaho Irr. Co., 21 Idaho 512, 122 P. 859; State v. Twin Falls Canal Co., 21 Idaho 410, 121 P. 1039.)

This court has already decided the law of this case in Boise City v. Boise City Canal Co., 19 Idaho 717, 115 P. 505.

Where a canal is constructed and operated according to law, a municipality cannot by extending its street create that a nuisance which was not a nuisance before. As the court says it can "only become a nuisance by reason of the manner in which it is maintained or the method of its operation." (Platte & Denver Ditch Co. v. Anderson, 8 Colo. 131, 6 P. 515; Denver v. Mullen, 7 Colo. 345, 3 P. 693; Tynon v. Despain, 22 Colo. 240, 43 P. 1039; City of Denver v. Denver etc. Ry. Co., 17 Colo. 583, 31 P. 338; Broder v. Natoma W. & M. Co., 101 U.S. 274, 25 L.Ed. 790; 6 Cyc. 272, note No. 27.)

Nothing which is done or maintained under the express authority of a statute can be deemed a nuisance. (Sec. 3659, Rev. Codes.) It is held that this section applies to a canal laid out before a public road is laid across it. (MacCammelly v. Pioneer Irr. Dist., 17 Idaho 415, 105 P. 1076.)

"Where the legislature directs or authorizes a particular thing to be done, the doing thereof cannot be charged or complained of as a nuisance." (29 Cyc. 1197; Miller v. Webster City, 94 Iowa 162, 62 N.W. 648; Dolan v. Chicago etc. Ry. Co., 118 Wis. 362, 95 N.W. 385; Murtha v. Lovewell, 166 Mass. 391, 55 Am. St. 410, 44 N.E. 347; Simmons v. Patterson, 60 N.J. Eq. 385, 83 Am. St. 642, 45 A. 995, 48 L. R. A. 717; People v. Detroit Plank Road Co., 37 Mich. 195, 26 Am. Rep. 512; Northern Trans. Co. v. Chicago, 99 U.S. 635, 25 L.Ed. 337.)

The city is estopped after having permitted and acquiesced in the change in the course of the ditch in the city limits. (Simplot v. Chicago etc. Ry. Co., 16 F. 350, 5 McCrary, 158; Los Angeles v. Cohn, 101 Cal. 373, 35 P. 1002; Sacramento County v. Southern P. Ry. Co., 127 Cal. 217, 222, 59 P. 568, 825; Chicago v. Union Stockyards & T. Co., 164 Ill. 224, 45 N.E. 430, 35 L. R. A. 281; Spokane St. Ry. Co. v. Spokane, 6 Wash. 521, 33 P. 1072.)

A right conferred or protected by the constitution cannot be overthrown or impaired by any authority derived from the police power (Dillon on Mun. Corp., 5th ed., sec. 302.) Nor can a city as a rule impair vested property rights. (Platte & D. Canal Milling Co. v. Lee, 2 Colo. App. 184, 29 P. 1036.)

Where any judicial tribunal judicially declares a thing to be a nuisance, its judgment is subject to review as any other judgment. (Denver v. Rogers, 46 Colo. 479, 104 P. 1042, 25 L. R. A., N. S., 247.)

C. O. Longley, George Herriott and E. L. Ashton, for Respondent.

"Inasmuch as the question of nuisance or no nuisance is one of fact, it becomes necessary in all populous towns to regulate such matters by public ordinance, and the public policy requires that the corporation should not be disturbed in the exercise of its powers unless it clearly transcends its authority." (Monroe v. Gerspach, 33 La. Ann. 1011; Llano v. Llano County, 5 Tex. Civ. App. 132, 23 S.W. 1008.)

The fact that a person or corporation has authority from the legislature or a municipality to do certain acts does not give the right to do such acts in a way constituting an unnecessary nuisance. (Sullivan v. Royer, 72 Cal. 248, 1 Am. St. 51, 13 P. 655; Tuebner v. California etc. Co., 66 Cal. 171, 4 P. 1162, and cases cited; Booth v. Rome etc. R. R. Co., 140 N.Y. 267, 37 Am. St. 552, 35 N.E. 592, 24 L. R. A. 105; 29 Cyc. 1199.)

"The powers granted to such corporations are to be construed as privileges conferred upon the understanding that they are to be exercised in strict conformity to private rights, and under the same responsibility as though the acts done in the execution of such powers were done by an individual." (Cleveland etc. R. R. Co. v. Pattison, 67 Ill.App. 351; Anderson v. Chicago etc. R. Co., 85 Minn. 337, 88 N.W. 1001; Cogswell v. New York etc. R. Co., 103 N.Y. 10, 57 Am. Rep. 701, 8 N.E. 537; Harmon v. Louisville etc. R. Co., 87 Tenn. 614, 11 S.W. 703; Baltimore etc. R. R. Co. v. Fifth Baptist Church, 108 U.S. 317, 2 S.Ct. 719, 27 L.Ed. 739.)

This court in the case of City of Nampa v Nampa etc. Irr. Dist., 23 Idaho 422, 131 P. 8, clearly laid down the law as to the right and authority of municipalities to regulate the method and manner of the operation by irrigation companies of ditches and laterals within the municipality.

Though the construction of a thing may be specially authorized by the state or the legislative acts of the state, the manner of the operation is not. (Platte & Denver Canal & Milling Co. v. Dowell, 17 Colo. 376, 30 P. 68; Kinney on Irrigation and Water Rights, sec. 1448; Village of Pine City v. Munch, 42 Minn. 342, 44 N.W. 197, 6 L. R. A. 763; Wood on Nuisance, 853--861.)

SULLIVAN, C. J. Budge and Morgan, JJ., concur.

OPINION

SULLIVAN, C. J.

This action was brought to determine the validity of an ordinance of Twin Falls city relating to the covering of a water ditch running through the streets of said city. The appellant was convicted of violating said ordinance in the district court of Twin Falls county and fined one dollar by the trial court, and the appeal is from the judgment and taken for the purpose of determining the legal right of the Twin Falls Canal Company to operate this ditch in the usual and ordinary manner through said city without covering the same as provided by said city ordinance. The appellant is the manager of the Twin Falls Canal Company, which company was in control of the Twin Falls canal system in said county.

The ditch involved is known as the Eighth street ditch, and is a part of the Twin Falls system. This ditch runs partly through sec. 16, which was originally a school section, and at least a part of the original townsite of Twin Falls, and a part through Murtaugh Addition to said city.

There is no substantial conflict in the proof of the case. It is contended on behalf...