Coulson v. Aberdeen-Springfield Canal Co.

• Decision Date: 02 June 1924
• Citation: 227 P. 29,39 Idaho 320
• Parties: E. B. COULSON, Appellant, v. ABERDEEN-SPRINGFIELD CANAL COMPANY, a Corporation, Respondent
• Court: Idaho Supreme Court

227 P. 29

39 Idaho 320

E. B. COULSON, Appellant, v. ABERDEEN-SPRINGFIELD CANAL COMPANY, a Corporation, Respondent

Supreme Court of Idaho

June 2, 1924

DISMISSAL AND NONSUIT-MOTION FOR NONSUIT-WATERS AND WATERCOURSES-IRRIGATION-WATER USERS-AMOUNT OF WATER-BENEFICIAL USE-DIVERSION OF WATER-APPEAL AND ERROR-REVIEW-QUESTIONS CONSIDERED-PLEADINGS-CAREY ACT CORPORATIONS-JUDICIAL NOTICE.

1. By making a motion for nonsuit at the close of the plaintiff's case, the defendant admits, for the purpose of the motion, all the facts which the evidence tends to prove.

2. It is against the public policy of the state, as well as against express enactments, for a water user to take from an irrigation canal more water, of that to which he is entitled than he can apply to a beneficial use.

3. The waters of this state belong to the state, and the right to the beneficial use thereof is all that can be acquired.

4. No duty devolves upon any water user to divert any water that he cannot put to a beneficial use.

5. An appellate court will not consider a question not put in issue by the pleadings.

6. A court will not take judicial notice of the existence of a Carey Act corporation.

APPEAL from the District Court of the Sixth Judicial District, for Bingham County. Hon. Robert M. Terrell, Judge.

Action for damages. Judgment of nonsuit. Reversed.

Judgment reversed. Costs to appellant.

G. F Hansbrough, for Appellant.

The insufficiency of the complaint is not a ground upon which a motion for a nonsuit may be based. (C. S., sec. 6830; Ludwig v. Ellis, 22 Idaho 475, 126 P. 769; Strong v. Western Union Tel. Co., 18 Idaho 389, Ann Cas. 1912A, 55, 109 P. 910, 30 L. R. A., N. S., 409.)

On motion for nonsuit after the plaintiff has rested the defendant must be deemed to have admitted all the facts of which there is any evidence, and all the facts which the evidence tends to prove. (Bank of Commerce v. Baldwin, 12 Idaho 202, 85 P. 497.)

Whitcomb, Cowen & Clark, for Respondent, cite no authorities on points decided.

WM. E. LEE, J. McCarthy, C. J., concurs, BUDGE, J., Concurring Specially.

OPINION

WM. E. LEE, J.

--This is an action for damages for the death of a bull. Appellant is a land owner on what is known as the Aberdeen-Springfield irrigation project, and respondent operates the canal which furnishes appellant and other farmers with water for the irrigation of their lands. Among its other canals and laterals, respondent operates what is known as the low line canal, which extends to and terminates upon the lands of appellant. From the point where the canal terminates, respondent uses what is known as a waste ditch for the purpose of conducting unused or waste water into Carter Creek, through which said water is discharged into the Snake River. Appellant alleges that the discharge of water from the terminus of the canal has resulted in the washing out, upon his lands, of a gulch about 1,000 feet long, 25 or 30 feet deep, and from 20 to 80 feet wide. Respondent admits the existence of the gulch and its cause, but alleges that the gulch, except a small part nearest the terminus of the canal, was caused by its predecessor. The banks of the gulch are very precipitous, over-hanging in places, and the evidence shows that the bull fell into that part of the gulch which was washed out after respondent began the operation of the canal system. Appellant alleges that the gulch, at the point where the bull received the injury that resulted in his death, was caused by the failure of respondent to build and maintain proper drops or flumes to prevent the washing out of the land. Respondent denies any negligence on its part, and specifically denies that it has failed to control properly the water of the waste ditch in its flow from the terminus of the canal, or that it has failed to maintain proper drops or flumes to prevent the washing. As a separate defense, respondent alleges that appellant has also used the waste ditch for the purpose of disposing of unused water intended for the irrigation of his lands; that, during all the time that appellant has been in possession of his premises, because of an understanding with respondent and at appellant's request, "a larger quantity of water has been run through the said low line lateral for the benefit of the plaintiff [appellant] than plaintiff was entitled to have and use from the said canal system, under the promise and agreement of the plaintiff that he, the plaintiff, would take care of the water and be responsible for it after the same entered his premises; [and] that the plaintiff, when such water has been furnished to him as aforesaid has allowed the same to waste through said waste-way, instead of using the same for irrigation purposes, and has thus contributed to the dangerous character of the said waste-way, if such was dangerous; . . . . "

The testimony showed that appellant was the lowest user on the low line canal, and that, between his place and the nearest waste ditch above, about twelve farmers received water. It appeared that the water users between appellant and the nearest waste ditch above shut off their water when they desired, and that the water placed in the canal by the respondent and not used by any of the water users came down through the lateral, and, except that used by appellant, was let out into the said waste ditch. It further appeared that some years ago, a box flume was constructed from the terminus of the low line canal extending about 60 feet to the upper end of the gulch as it then existed, but that it went to pieces, and that, during the months of August and September, 1920, the waste water from the terminus of the canal washed away the ground and the gulch was thereby extended up to the terminus of the canal; and it is appellant's contention that it was the negligence of the company, in not constructing some sort of flume, or other suitable instrumentality, to carry the waste water from the terminus of the canal, that caused the land to wash out and create the gulch where the bull was injured. At the close of appellant's case the court upon respondent's motion, granted a nonsuit, and judgment of dismissal was thereupon made and entered. This appeal is from the judgment.

By making the motion for nonsuit at the close of appellant's case, respondent, for the purpose of the motion, admitted all the facts which the evidence tended to prove. (Schleiff v. McDonald, 37 Idaho 423, 216 P. 1044; Bank of Commerce v. Baldwin, 12 Idaho 202, 85 P. 497; Later v. Haywood, 12 Idaho 78, 85 P. 494; York v. Pacific & Northern Ry. Co., 8 Idaho 574, 69 P. 1042; Simpson v. Remington, 6 Idaho 681, 59 P. 360; Kansteiner v. Clyne, 5 Idaho 59, 46 P. 1019; Lewis v. Lewis, 3 Idaho 645, 33 P. 38.)

The first contention of respondent upon which he claims a nonsuit was properly granted is that the greater portion of the water causing the washout where the bull was injured belonged to appellant, in that the evidence discloses, says respondent, that the water to which appellant was entitled which was conducted to and upon his land for his use in irrigation, together with other water, furnished appellant for such use, in addition to his quota, which he had agreed with respondent so to use, was not taken from the canal and used for irrigation, but that a large quantity of such water was permitted by appellant to pass out through the terminus of the canal, thus causing, or largely causing, the washout where the injury occurred. Under these circumstances respondent claims that, even though it was guilty of negligence in the creation of the gulch, and that it was its duty to take steps to prevent injury therefrom, appellant contributed to the injury and cannot recover.

Respondent's position, in its final analysis, is that a legal duty devolved upon appellant to divert all the water to the use of which he was entitled, irrespective...