Condie v. Swainston

Decision Date24 October 1940
Docket Number6785
Citation62 Idaho 472,112 P.2d 787
PartiesALMA G. CONDIE, Respondent, v. WILLIAM SWAINSTON, HAROLD SWAINSTON, SERGE BALLIF and WINDER RESERVOIR COMPANY, a corporation, Appellants, and TWIN LAKES CANAL COMPANY, a corporation, Interpleaded Respondent
CourtIdaho Supreme Court

ON REHEARING MAY 1, 1941.

WATER AND WATER COURSES-EASEMENT AND RIGHT OF WAY FOR MAINTENANCE - ABANDONMENT - EVIDENCE - TRESPASS - INJUNCTION-PLEADING-APPEAL-CONVERSION-DAMAGES.

1. In action to enjoin trespasses on plaintiff's land by reservoir company which allegedly owned reservoir and ditches on land and right of way and easement therefor, and that entry was made for purpose of cleaning and maintaining ditches on land, evidence justified decree granting injunction on ground that none of water from creek or reservoir had been used by the reservoir company or its stockholders since 1926, and that reservoir company had abandoned its ditches, syphon, easement, and right of way for maintenance of reservoir and syphon.

2. Finding supported by substantial evidence was controlling on appeal.

3. Where defendant filed cross-complaint on ground that plaintiff had appropriated to his own use certain pieces of defendant's galvanized syphon, trial court's decision that defendant would be limited to a showing of market value as measure of damages was unduly restrictive.

4. In action to enjoin trespasses on plaintiff's land by reservoir company which asserted ownership of a water right and right of way and easement for a reservoir and ditches on the land, the defendant company and its agents were bound by their answer which specifically admitted that the plaintiff was the owner in fee of the reservoir site and the land over which a portion of the ditch was constructed to the reservoir.

5. In action to enjoin trespasses on plaintiff's land by reservoir company and which asserted ownership of a water right and right of way and easement for a reservoir and ditches on the land, where there was substantial evidence to support trial court's finding and judgment for plaintiff the Supreme Court was required to affirm the judgment. (I. C. A., secs. 11-219, 13-701, subd. 3; sec 41-1006.)

APPEAL from the District Court of the Fifth Judicial District for Franklin County. Hon. Jay L. Downing, Judge.

Respondent sued to enjoin appellants from trespassing upon his lands. Appellant Winder Reservoir Company, by counter claim asserted ownership of a water right and right of way and easement for a reservoir and ditches on said land, and sought delivery of said water by interpleaded respondent and damages from respondent Condie for conversion of part of a syphon. Judgment permanently enjoining the trespass and denying counterclaim against interpleaded respondent affirmed. Judgment denying damages for conversion of part of syphon by respondent Condie reversed and remanded for further proceedings.

Judgment affirmed but cause remanded. Costs in favor of respondent and cross-respondent against appellant Winder Reservoir Company.

Jesse P. Rich and A. W. Hart, for Appellant.

Abandonment. (1 C. J. S. 4, 10; 67 C. J. 1048; Randall Canal Co. v. Randall, 56 Idaho 99; 50 P.2d 593; 9 R. C. L. 810, sec. 66; Gila Water Co. v. Green, 232 P. 1016, 241 P. 207.)

Abandonment to use of water renders the statutes still a matter of intention. (I. C.A., sec. 41-216; Lindblom v. Round Valley Water Co., (Cal.) 173 P. 994; Alberthsen v. Wood River Land Co., 40 Idaho 49; 231 P. 418; I. C. A., sec. 39-104.)

Personal property is not abandoned by non-use. (Conway v. Fabian, 89 P.2d 1022; Steinfled v. Omega Copper Co., (Ariz.) 141 P. 847.)

Cost is the measure of damages where there is no market value. (Sutherland on Damages, Vol. 4, Fourth Edition, sec. 1024, page 3807.)

Ben Johnson, for Respondent.

Abandonment in Idaho is defined by statute. (Sec. 41-216, I. C. A., 1932, as amended Laws of 1936, chap. 224, sec. 1, p. 498. "All rights to the use of water acquired under this chapter or otherwise shall be lost and abandoned by a failure for the term of five years to apply it to the beneficial use for which it was appropriated, and when any right to the use of water shall be lost through nonuse or abandonment, such rights to such water shall revert to the state and be again subject to appropriation under this chapter. * * *" First Security Bank v. State, 49 Idaho 740, 291 P. 1064; Chill v. Jarvis, 50 Idaho 531, 298 P. 373.)

Abandonment may occur through nonuse of the right or failure to keep in repair ditches and flumes. (Joyce v. Murphy Land etc. Co., 35 Idaho 549, 208 P. 241; Kinney on Irrigation, 2nd Ed., sec. 1116, page 2012; Stalling v. Ferrin, 7 Utah 477, 27 P. 686; Jackson v. Indian Creek, etc. Co., 18 Idaho 513, 110 P. 251; Rutherford etc. Co. v. Lucerne etc. Co., 12 Wyo. 299, 75 P. 445.)

Recoverable damages in any case must be susceptible of ascertainment with a reasonable degree of certainty. (Western Union & Telegraph Company v. Foy, 32 Okla. 801, 124 P. 305, 49 L. R. A. (N. S.) 343; Winston Cigarette Mach. v. Wells-Whitehead Tobacco Company, 141 N.C. 284, 53 S.E. 885, 8 L. R. A. (N. S.) 255.)

Damages which are incident, contingent, or speculative cannot be recoverable either in actions ex contractu or actions ex delicto. (Martin v. Deetz, 102 Cal. 55, 36 P. 368; Page v. Fowler, 39 Cal. 412, 2 Am. Rep. 462; Muldrew v. Norris, 2 Cal. 74, 56 Am. Dec. 313; 15 Am. Jur., sec. 20, page 410.)

P. J. Evans, for Interpleaded Respondent.

The interpleaded defendant rests its case on the defense of statutory abandonment by appellant since 1926, in that appellant has used no water, in any way from Battle Creek since said date, and that all of said waters have been continuously applied to a beneficial use since that date by interpleaded defendant.

Sec. 41-216 of the Idaho Codes Annotated of 1932 provides inter alia:

"All rights to the use of water acquired under this chapter or otherwise shall be lost and abandoned by a failure for the term of five years to apply it to the beneficial use for which it is appropriated."

The statute quoted having fixed the length of non-use necessary to constitute abandonment, a voluntary non-use for the length of time fixed by statute of any water rights terminates the right to such water, and the intention of the water user is immaterial. (On this point see 67 C. J., 1050, par. 501; Albrethson v. Wood River Land Company, 41 Idaho 49, 231 P. 418; Mellen vs. Great Western Beet Sugar Co., 21 Idaho 333, Ann. Cas. 1913D, 621, 122 P. 30; Joyce v. Murphy Land Co., 35 Idaho 549, 208 P. 241; St. John Irr. Co. v. Danforth, 50 Idaho 513, 298 P. 365; Chill v. Jarvis, 50 Idaho 531, 298 P. 573.)

GIVENS, J., BUDGE, C. J. Ailshie, C. J., Morgan, Holden, JJ., Givens, BUDGE, J., MORGAN, J., (Concurring).

OPINION

GIVENS, J.

--Respondent Alma G. Condie brought this action July 22, 1938, to enjoin the appellant Winder Reservoir Company, its officers and agents, from trespassing upon his lands. The individual appellants contended they made the entry on respondent's lands as agents of Winder Reservoir Company, in which they were stockholders, and that said company owned a reservoir and ditches on said lands and a right of way and easement therefor and that such entry was for the purpose of cleaning and maintaining such ditches and reservoir.

By way of cross-complaint appellant company alleged ownership in 3.50 cubic feet per second of the waters of Battle Creek by reason of appropriation and application to a beneficial use of such amount by its predecessors in interest, the Strong Arm Reservoir Company, since 1883; that in order to make proper use of said water appellant's predecessors in interest constructed the reservoir and ditches in question for the purpose of storing said water and catching the natural run off from surrounding hills and that the waters were diverted from said reservoir by means of canals, ditches and syphons or flumes and put to a beneficial use in irrigation of the lands of appellant Winder Reservoir Company's stockholders and their predecessors in interest from April 1st until October 1st every year since 1883; that the predecessors in interest of Twin Lakes Canal Company, the Oneida Irrigation District, constructed a canal which cut the ditch of Winder Reservoir Company leading from Battle Creek to appellant's reservoir and that in the year 1905 an agreement was made by the predecessors in interest of appellant and the Oneida Irrigation District whereby Oneida Irrigation District promised to deliver to Winder Reservoir the same amount of water said predecessors of Winder Reservoir Company were entitled to appropriate from Battle Creek, and prayed the interpleaded respondent, Twin Lakes Canal Company, as successor in interest to the Oneida Irrigation Company be enjoined and restrained from preventing the water of Battle Creek from running into appellant's reservoir, or in lieu thereof, that it be required to deliver to said reservoir the amount of water received by it from Battle Creek to which appellant Winder Reservoir Company was entitled.

As a second cause of action appellant's cross-complaint alleged respondent Condie had appropriated to his own use certain pieces of appellant's syphon and claimed damages of $ 500 therefor.

The interpleaded respondent alleged abandonment by appellant of the waters of Battle Creek and application thereof to a beneficial use by said interpleaded respondent but did not ask to be decreed the right to such waters.

The trial court, sitting without a jury, found the predecessors in interest of appellant Winder Reservoir Company did appropriate and pat to a beneficial use on lands of its stockholders 3.50 cubic feet per second of the waters of Battle Creek and that they had constructed the dam and...

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    • United States
    • United States State Supreme Court of Idaho
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    ...of the trial court will not be disturbed on appeal where supported by competent, substantial evidence. I.C. § 13-219; Condie v. Swainston, 62 Idaho 472, 112 P.2d 787; Langley v. Deshazer, 78 Idaho 376, 304 P.2d The judgment of the trial court is affirmed. Costs to respondents. KEETON, C. J.......
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    ...are supported by competent and substantial evidence, therefore they will not be disturbed on appeal. I.C., § 13-219; Condie v. Swainston, 62 Idaho 472, 112 P.2d 787; In Re Village of Riggins, 68 Idaho 547, 200 P.2d 1011; Parke v. Parke, 76 Idaho 168, 279 P.2d 631; Jordan v. Yoder, 77 Idaho ......
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