Douglas Reservoirs Water Users Ass'n v. Cross

• Decision Date: 12 October 1977
• Docket Number: Nos. 4739,4740,s. 4739
• Citation: 569 P.2d 1280
• Parties: DOUGLAS RESERVOIRS WATER USERS ASSOCIATION, Appellant (Defendant below), v. Richard S. CROSS and Rita Kaye Cross, Appellees (Plaintiffs below). Richard S. CROSS and Rita Kaye Cross, Appellants (Plaintiffs below), v. DOUGLAS RESERVOIRS WATER USERS ASSOCIATION, Appellee (Defendant below).
• Court: Wyoming Supreme Court

Page 1280

569 P.2d 1280

DOUGLAS RESERVOIRS WATER USERS ASSOCIATION, Appellant (Defendant below), v. Richard S. CROSS and Rita Kaye Cross, Appellees (Plaintiffs below).

Richard S. CROSS and Rita Kaye Cross, Appellants (Plaintiffs below), v. DOUGLAS RESERVOIRS WATER USERS ASSOCIATION, Appellee (Defendant below).

Nos. 4739, 4740.

Supreme Court of Wyoming.

Oct. 12, 1977.

B. J. Baker, Brown, Drew, Apostolos, Massey & Sullivan, Casper, signed the briefs and appeared in oral argument on behalf of the appellees and cross-appellants, Richard S. Cross and Rita Kaye Cross.

Thomas A. Burley, Douglas, signed the brief and appeared in oral argument on behalf of the appellant and cross-appellee, Douglas Reservoirs Water Users Ass'n.

Before GUTHRIE, C. J., and McCLINTOCK, RAPER, THOMAS and ROSE, JJ.

RAPER, Justice.

The plaintiffs-appellees cross-appellants brought action against the defendant-appellant cross-appellee for damages to plaintiffs' property, arising out of a flood caused by a break in defendant's canal allegedly resulting from negligent repair and maintenance. The district judge, trying the case without a jury, found negligence and awarded plaintiffs $12,125.00.

Defendant asserts in this appeal that there was insufficient evidence to support a finding of negligence, the evidence showing the loss to plaintiffs to be an act of God and damages awarded were excessive even if negligence of defendant was proven by plaintiffs. The only ground for defendant's attack on damages, which we shall consider, is that plaintiffs failed to prove a diminution in the value of the property from what it was immediately before the injury and its value after the injury.

On the cross-appeal, the plaintiffs contend that the court erroneously denied damages for the loss of plaintiffs' shed or barn and that there was no basis for the court's denial of all damages proven by them.

We shall affirm in part and direct a modification of the trial court's judgment.

On May 29, 1974, sometime after 12:30 a. m., a flood occurred along an intermittent stream, located in a wide draw called Five Mile Creek, which runs through a ranch called the "Hart Ranch," owned by plaintiffs and purchased by them earlier that same year. The water that caused the flood came from a break that occurred in the LaPrele Canal on the east side of Five Mile Creek. The day before, May 28, 1974, a substantial rain had occurred in the area commencing about 2:00 in the afternoon and ending about 7:30 in the evening. The break occurred at the same location on the canal where water had forced its way through the year before, when the ranch was owned by another.

The trial judge entered the following findings of fact: ¹

"1. That the specific acts or omissions on the part of the defendant which constituted negligence in the repair of the canal are as follows:

"(a) At the time the break which occurred in 1973 was repaired the persons repairing the said canal for defendant failed to remove a layer of sandstone or shale that existed as the bottom of the break and a proper foundation was never established upon which the lower embankment of the ditch or canal could be built.

"(b) The material used to repair the break of 1973 was not properly compacted.

"2. The source of the water causing the damage was water from plaintiff's canal which flowed through the break that occurred on May 29, 1974. This was the only source of water that contributed to the damage suffered by plaintiffs.

"3. The negligence of defendant in repairing the 1973 break in the canal as set forth in finding number 1 above was the proximate cause of the wash-out of the canal bank and the cause of the damage complained of.

"4. The preponderance of the evidence showed that the wash-out of 1974 occurred as the result of the negligent acts of defendant set forth in finding number 1 above, and there was no other substantial evidence that the wash-out could have occurred from any other cause.

"5. The only testimony introduced with respect to the portion of the damage caused by the 1974 flooding was the testimony of plaintiff, Richard S. Cross. The testimony of plaintiff, Richard S. Cross, showed that one-half to one-third of the damage to Reservoir No. 1 existed prior to the 1974 flooding and that the remainder of the damage was caused by the 1974 flooding. Plaintiff Richard S. Cross testified that one-third of the damage to the other reservoirs existed prior to the 1974 flooding and that the remainder of the damage was caused by the 1974 flooding. Plaintiff Richard S. Cross testified that one-tenth of the silt that needs to be cleaned from the reservoirs was in the reservoirs prior to the 1974 flooding and that the remainder of the silt was deposited by the 1974 flooding. Plaintiff Richard S. Cross testified that all the remainder of the damage was caused by the 1974 flooding.

"6. The specific facts that show that defendant failed to exercise reasonable care and skill in its attempt to prevent injury to the plaintiffs from the canal are the acts or omissions on the part of the defendant in the repair of the 1973 break in the canal, as set forth in finding number 1 above and the actions of the defendant in failing to reduce the flow of the canal at a time when defendant had actual knowledge that the canal was full and running over. The evidence also showed that defendant had failed to make adequate provision to provide for the drainage from Five Mile Creek draw.

"7. Plaintiffs are not entitled to the damages for loss of crops because such damages were not adequately proved. Plaintiffs are not entitled to damages for the loss of the shed or barn because plaintiffs failed to prove the value of the building before and after the flood. Plaintiffs sustained and are entitled to recover damages in the sum of $12,125.00 plus costs from defendant.

"8. Generally in favor of plaintiffs and against defendant."

In matters of evidence on review, we apply the monotonously-repeated rule that an appellate court must assume evidence in favor of a successful party to be true, leave out of consideration the conflicting evidence of the unsuccessful party and give the evidence of the successful party every favorable inference which may be reasonably drawn from it. Oedekoven v. Oedekoven, Wyo.1975, 538 P.2d 1292; k931(1) and 989, Appeal and Error, West's Digest System. A recognition of the foregoing may avoid some disappointment at the results obtained in this court. Hawkey v. Williams, 1955, 73 Wyo. 463, 281 P.2d 447. On the question of negligence, the record in this case contains nothing to rebut that presumption. Indeed, there is hardly any controversy in the facts, some of the evidence of negligence coming from the defendant's own witnesses. On the issue of damages, the presumption in favor of the trial court's holding is applicable in part but not appropriate in another, which we shall resolve during the course of this opinion.

While there was an intense rainfall, under precedent of this court, a flood must be of such an unusual and extraordinary manifestation of the forces of nature that it could not have been anticipated under normal conditions in order to be classified as an act of God. Jacoby v. Town of City of Gillette, 1946, 62 Wyo. 487, 174 P.2d 505, 169 A.L.R. 502, reh. den., 62 Wyo. 487, 177 P.2d 204. There was evidence of similar storms in past years, so there is no support for defendant's defense that an act of God caused plaintiffs' loss. The burden was on the defendant to show by way of an affirmative defense that the loss was due solely to an act of God. Sky Aviation Corporation v. Colt, Wyo.1970, 475 P.2d 301, 44 A.L.R.3d 854.

The last issue concerns damages. We have no problem concluding that there was damage, at least to the extent allowed by the trial court. The findings of fact with respect to damages contained no itemization, by way of a special finding, of the court's computation of damages and were only explanatory in paragraph numbered "7," as follows: "7. Plaintiffs are not entitled to damages for loss of crops because such damages were not adequately proved. Plaintiffs are not entitled to damages for the loss of the shed or barn because plaintiffs failed to prove the value of the building before and after the flood. * * *"

Our difficulty with the issue of damages is not with whether there were damages but with the court's ultimate determination of amount. All the damages were to the land and its improvements. ² The plaintiffs approached the problem from a cost-of-repair basis. The defendant insists that the only way damages to realty can be determined is by the before-and-after rule that the measure of damages for injury to real property is the difference between the value of the property before and after the injury.

This court has recently discussed that rule of damages in summary holding that while damages...