Collins v. Twin Falls North Side Land & Water Co.

• Decision Date: 06 October 1915
• Citation: 152 P. 200,28 Idaho 1
• Parties: DOLIN COLLINS, Respondent, v. TWIN FALLS NORTH SIDE LAND AND WATER COMPANY, Appellant
• Court: Idaho Supreme Court

152 P. 200

28 Idaho 1

DOLIN COLLINS, Respondent, v. TWIN FALLS NORTH SIDE LAND AND WATER COMPANY, Appellant

Supreme Court of Idaho

October 6, 1915

CAREY ACT CONSTRUCTION CO.-STATE CONTRACT-IRRIGATION SYSTEM-WATER-FAILURE TO FURNISH-DAMAGE TO CROPS-MEASURE OF DAMAGES-SERVICE DITCH-FAILURE TO CONSTRUCT-CHECK OR DAM IN LATERAL OR SUBLATERAL-DUTY OF CONSTRUCTION COMPANY-OF SETTLER - ADMISSION OF EVIDENCE - SUFFICIENCY OF-INSTRUCTIONS.

1. Under the contract of the construction company with the state on a Carey Act project, the construction company agreed to construct the canal system so that the water conducted through the same would be available at a point not to exceed one-half mile measured in a direct line from each quarter section of the land included in the project.

2. To make water available under the provisions of said contract means to bring it to the half-mile point from a quarter section of such land, measured in a direct line, in such a way that the water can be taken from the canal, or company lateral, to a point upon the land to be irrigated so that it may be used for the purpose of irrigating the land under a gravity system through ditches to be constructed by the settler.

3. Under said contract the duty devolved upon the settler or user of water to construct his own service ditch or ditches from the laterals of the construction company and to furnish one headgate for the purpose of diverting such water into his service ditch.

4. Held, that since the evidence shows that the service ditch for the east eighty-acre tract of plaintiff's land was not completed until May 26, 1909, the construction company was not liable for any dam- ages to plaintiff's crops that occurred prior to that date on account of such crops not being irrigated.

[As to damages for injury to growing crops, see note in 140 Am.St 309.]

5. Held, under the facts of this case that it was the duty and right of the plaintiff to construct a small check or dam across the channel of "B" coulee to turn the water therefrom into his service ditch, in case the bottom of his service ditch required that to be done in order to get his proper amount of water into it.

6. Held, that the court erred in instructing the jury that it was not the duty of the plaintiff to place said check or dam in "B" coulee for the purpose of turning the water therefrom through his headgate into his own service ditch.

7. Where a party can save himself from a loss arising from a breach of a contract at a small expense or with reasonable exertion, it is his duty to do so, and then he can recover such expense from the party liable, and also such damages only as with reasonable endeavor and expense he could not prevent.

8. Held, under the facts of this case, that the court erred in giving instruction No. 17 to the jury.

9. Held, that certain evidence admitted under objection of the defendant was error.

10. Held, that the refusal to admit certain evidence offered on behalf of the defendant was error.

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

Action to recover damages for loss of certain crops. Judgment for plaintiff. Reversed.

Judgment reversed, and a new trial granted, and cause remanded. Costs awarded to appellant.

S. H Hays and P. B. Carter, for Appellant.

The fact that the company put a check in later on as a part settlement of another claim could not be introduced in evidence in this case. (Holt v. Spokane etc. Ry. Co., 3 Idaho 703, 35 P. 39.)

That plaintiff could have built a substantial check for a reasonable amount is clear, and in such case he cannot recover damages for consequences which were avoidable by him. (Sedgwick on Damages, secs. 201, 202; Warren v. Stoddart, 105 U.S. 224, 26 L.Ed. 1117.)

The court should have limited the damages to the value at the time of destruction. The instruction and ruling of the court upon the testimony was therefore erroneous. (Hanes v. Idaho Irr. Co., 21 Ida 512, 122 P. 859.)

For injury during that portion of the season in which it is possible to reproduce the crop, the cost of replacement is the proper measure of damages. (Sutherland on Damages, p. 3001.)

After there is a crop in existence, the measure of damages is the value of the crop at the time of the injury or destruction. ( Risse v. Collins, 12 Idaho 689, 87 P. 1006; Lowe v. Yolo County Consol. Water Co., 157 Cal. 503, 108 P. 297.)

If it was our duty to put in the ditch and we failed to do so, the settler could not sit by and suffer the loss of a $ 3,000 crop for the want of a $ 50 check, and if he was required to put in a check which it was our duty to put in, the measure of damages is the cost of the check. (Sedgwick on Damages, secs. 212-b and 214-b.)

Guthrie & Bowen, for Respondent.

The contract should be given a reasonable construction. The word "available" in the construction company's contract means obtainable in a practical sense. (9 Cyc. 587.)

The following authorities sustain the instructions regarding measure of damages: Montgomery v. Locke, 72 Cal. 75, 13 P. 401; Missouri K. & T. Ry. Co. v. Lycan, 57 Kan. 635, 47 P. 526; Kansas City etc. Ry. Co. v. Perry, 65 Kan. 792, 70 P. 876; Atchison etc. Ry. Co. v. Geiser, 68 Kan. 281, 75 P. 68, 1 Ann. Cas. 812; Mogallon G. & C. Co. v. Stout, 14 N.M. 245, 91 P. 724; Waldteufel v. Vineyard Co., 6 Cal.App. 624, 92 P. 747; Rowe v. Chicago & N. Ry. Co., 102 Iowa 286, 71 N.W. 409; White v. Chicago etc. Ry. Co., 1 S.D. 326, 47 N.W. 146, 9 L. R. A. 824; Carner v. Chicago etc. Ry. Co., 43 Minn. 375, 45 N.W. 713.

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

OPINION

SULLIVAN, C. J.

This action was brought by the plaintiff, who is a settler on a Carey Act project, against the defendant, the construction company upon such project, for damages caused to crops by reason of the various alleged breaches of contract on the part of the construction company with the state in the construction of the irrigating works upon said project, which failure, it is alleged, impaired the water supply and caused the plaintiff certain losses in his crops for the years 1909 and 1910.

The complaint sets forth two causes of action: One occurring in the year 1909 in the sum of $ 2,195, and the other in the year 1910 in the sum of $ 700. After a trial in the district court, judgment was rendered against the defendant corporation for the sum of $ 3,109.50, a part of the judgment being interest on the sum awarded as damages. A motion for a new trial was denied and the appeal is from the judgment and the order denying a new trial.

The breaches of contract on the part of the construction company in both causes of action, according to the allegations of the complaint, arise out of (1) the failure of the construction company to properly construct said irrigation system, and (2) a failure to supply the water as agreed.

We gather from the complaint that the failure to supply the water was because of the alleged improper construction of said irrigation system. It is provided in the contract of the construction company with the state that the construction company shall construct said canal system so that the water conducted through the same may be available at a point not to exceed one-half mile measured in a direct line from each quarter section of land described in the contract. To make water available, under the provisions of said contract, simply meant to bring it to the half-mile point from a quarter section of said land, measured in a direct line, in such a way that the water could be taken from the canal or lateral, to and upon the land to be irrigated, so that it may be used there for purposes of irrigating the land through the ditches to be constructed by the settler, under a gravity system.

Under said state contract, while the construction company retained control of the canal system, water should be measured to users at the place of diversion from the main laterals of said system in such quantities and at such times as the condition of the crops and water might determine. Under said contract, a main lateral is defined as "a lateral taken from the main line of the canal." In many cases the construction company, in order to make the water available within a half mile of each quarter section, had to construct sublaterals from the main laterals, as was done in the case at bar. The evidence shows that the water for the irrigation of the east eighty acre tract of respondent's land was taken from what is known as "B" coulee, which was used as a conduit or lateral by the construction company for conducting its water to users.

Under said state contract it is provided that "a coulee or draw used as a main lateral or subordinate lateral shall also be included within these terms." Said "B" coulee was a natural channel where water evidently ran during the wet season before the construction of the canal system, and was dry at least a part of the year. It does not appear whether the "B" coulee, from whence the respondent procured water to irrigate his east eighty, was a main or subordinate lateral. The record does not show where the point of measurement for the east eighty tract was located; however, plaintiff's service ditch was connected with said coulee and water taken therefrom to irrigate said land.

There were other users of water from said coulee, and it is clear that the construction company is not responsible for the misapplication of water by users themselves from a common or service ditch constructed and owned by themselves, since after the water is taken out into a service ditch from a main or subordinate lateral by irrigators, the construction company has no control over it.

As we gather from the record, the real matter complained of at the...