Fischer v. Davis

• Citation: 24 Idaho 216,133 P. 910
• Parties: EUGENE FISCHER, Appellant, v. THOMAS J. DAVIS et al., Respondents
• Decision Date: 12 June 1913
• Court: United States State Supreme Court of Idaho

133 P. 910

24 Idaho 216

EUGENE FISCHER, Appellant, v. THOMAS J. DAVIS et al., Respondents

Supreme Court of Idaho

June 12, 1913

APPELLATE PRACTICE AND PROCEDURE-PREPARATION OF TRANSCRIPT-TRANSCRIPT OF REPORTER'S NOTES-TIME FOR EXTENDING NOTES-JURISDICTION OF TRIAL JUDGE TO GRANT EXTENSIONS-RULE 77 OF SUPREME COURT DIRECTORY ONLY-DUTY OF APPELLANT IN PROCURING TRANSCRIPT-LACHES-APPLICATION OF RULES 23 AND 25 OF SUPREME COURT TO AMENDED APPELLATE PROCEDURE-RIPARIAN OWNERSHIP-PROTECTION TO BANKS OF STREAM-OBSTRUCTIONS IN STREAM-SHIFTING AND CHANGEABLE STREAMS-BREAKWATER, CRIBBING AND RIP-RAPPING ALONG STREAMS-INJUNCTION.

1. Under the provisions of subd. 1 of sec. 4434 of the Rev Codes, as amended at the 1911 session of the legislature (1911 Sess. Laws, p. 379), an appellant who desires "a transcript of the testimony and proceedings.... shall first procure from the district judge an order directing the reporter to prepare said transcript or specified portion thereof, which order shall limit the time within which the reporter shall complete and lodge the same." In the event any further order for extension of time is necessary the district judge has the jurisdiction and authority to grant such further time as may be required.

2. Under the amended and revised appellate practice and procedure, as adopted by the 1911 session of the legislature the appellant has no control over the getting out of the transcript, either of the reporter's notes or of the judgment-roll and record in the case, except to file his praecipe for the record and pay the estimated fees therefor until the transcript is delivered to him for service.

3. The amended and revised appellate practice and procedure, as adopted by the 1911 session of the legislature, leaves the preparation of the transcript of the reporter's notes and the record in the case to the court reporter and the clerk of the district court, and the duty of filing such record in the supreme court is imposed upon the clerk of the district court, and on failure by the reporter or the clerk to discharge this duty promptly and with diligence, either the district judge or the supreme court may issue orders and mandates to compel prompt and timely action on the part of these court officials.

4. A failure on the part of either the court reporter to prepare a transcript of his notes or on the part of the clerk of the district court to prepare and deliver a transcript or file the same in the supreme court cannot result in or work a dismissal of the appeal, unless the appellant has been guilty of laches and negligence, or has in some way contributed to or encouraged the delay and failure on the part of the proper officer to act.

5. Held, that under the provisions of sec. 4434 of the Rev Codes, as amended by chap. 119 of the Session Laws of 1911 (1911 Sess. Laws, p. 379), it was the purpose and intent of the legislature to vest the jurisdiction and authority in the district judge to control the getting out of reporter's notes and to grant necessary extensions of time for the reporter to transcribe his notes and to make all orders in relation thereto.

6. Rule 77 of the rules of the supreme court, with reference to extensions of time within which to extend reporter's notes and the showing to be required by the district judge before granting such extensions, is directory and not mandatory, and a failure to comply therewith will not work a dismissal of an appeal where the appellant has been diligent in the prosecution of the appeal and has done everything required of him by statute to be done.

7. This court will require a strict compliance with all the provisions of the revised and amended appellate practice and procedure, as enacted by the 1911 session of the legislature, in so far as those provisions contemplate the speedy prosecution of appeals and the elimination of delays.

8. Under the amended and revised statutes prescribing the appellate practice and procedure, a reporter's transcript of the testimony, duly signed and certified by the judge of the district court, takes the place of a statement or bill of exceptions, and the time for filing a transcript on appeal as prescribed by Rules 23 and 25 of the supreme court is suspended during the time the reporter is preparing his notes and until the same is settled and allowed by the district judge.

9. As a general rule of law applicable to a river or stream of water with well-defined banks and a permanent channel or bed, a riparian owner of lands abutting on such stream has no right to place obstructions out into the stream or channel thereof for the purpose of changing the natural course of the stream or for any other purpose that would be injurious or damaging to the riparian owner on the opposite side thereof or to the owner of land abutting on the stream either above or below.

10. The general rule applicable to flowing streams of a permanent character and well-defined banks and channel or bed is subject to many exceptions in cases where a stream is vagrant and constantly changing in its course and channel and flows through a level, sandy and gravelly formation, and is constantly filling in on one side and cutting out on the opposite side, thus damaging riparian proprietors.

11. A riparian proprietor has a right to build cribbing, stockades, or rip-rapping along the natural bank of the stream in order to protect the banks and the abutting lands.

12. The law will not permit one riparian proprietor to build structures in the channel or bed of the stream so as to impede or interfere with the flow of the current or render it necessary for another riparian proprietor to build rip-rapping, cribbing, a breakwater, or other structure, in order to protect his land from washing or erosion caused by the additional burden and flow of water cast upon it by reason of the encroachments of such opposite riparian proprietor.

13. In dealing with streams of the nature and character of the Boise river where it flows through the Boise Valley, a court must take into consideration the natural conditions and the peculiarities of the stream and the country and formation through which it flows and its vagrant and changeable character, and also the fact that great reservoirs and lakes have been formed and prepared and are being prepared for the storage of the waste, surplus and overflow of this stream in the high-water period, and that in the near future there will be no high-water season in this stream where it flows through the Boise Valley.

APPEAL from the District Court of the Third Judicial District for Ada County. Hon. Charles P. McCarthy, Judge.

Action for permanent injunction. Judgment for the defendant and plaintiff appealed. Affirmed.

Judgment affirmed. Costs awarded to respondents.

B. F. Neal, for Appellant.

We have been unable to find any construction of the acts of 1911 relating to appeals by this court which throws any considerable light on the questions raised on the respondents' motions to dismiss. However, similar circumstances to those in the case at bar have been construed by many of the courts, though none under identical statutes. (Smith v. Jaccard, 20 Cal.App. 280, 128 P. 1023; Continental etc. Assn. v. Mills, 44 Neb. 136, 62 N.W. 478; Dist. of Columbia v. Roth, 18 App. D. C. 547; Baldwin v. Mitchell, 86 Md. 379, 38 A. 775; Cahill v. City of Baltimore, 93 Md. 233, 48 A. 705; State v. Estes, 34 Ore. 196, 51 P. 77, 52 P. 571, 55 P. 25; Dean v. Oregon R. & N. Co., 38 Wash. 565, 80 P. 842; First Nat. Bank v. Fowler, 51 Wash. 638, 99 P. 1034; United States v. Adams, and United States v. Johnson, 6 Wall. 101, 18 L.Ed. 792; Cameron v. Calkins, 43 Mich. 191, 5 N.W. 292.)

The reason for the rule announced in Simpson v. Pioneer Irr. Dist., 17 Idaho 435, 106 P. 1, has ceased, and the reason for the rule being gone, the rule likewise must go. Especially must this be so where the statute provides all the machinery for carrying on all the proceedings relating to appeals, and merely gives the supreme court supervisory power over appeals, under Laws 1911, c. 117, sec. 4820-A, subsec. 4, p. 376, in formal matters, and requires that all such rules as are made by the supreme court shall be "not inconsistent with the spirit of this act."

The accustomed course of a stream which riparian owners are entitled to say must not be disturbed is not to be found in historical research, but is that which is its natural and apparently permanent course at the time when the right is called in question. (2 Farnham, Waters, p. 1636; also Wares, Roman Water Laws, sec. 21; Larrabee v. Town of Cloverdale, 131 Cal. 96, 63 P. 143.)

"Riparian proprietor is entitled to nominal damages for any disturbance of his right without proof of actual damages." (Stein v. Burden, 24 Ala. 130, 60 Am. Dec. 453.)

Damage is presumed from the diversion of a stream. (Plumleigh v. Dawson, 1 Gilm. (Ill. ) 544, 41 Am. Dec. 199, and note; Tillotson v. Smith, 32 N.H. 90, 64 Am. Dec. 357; Angell, Watercourses, sec. 135; Barnes v. Sabron, 10 Nev. 217.)

Obstruction of running water is a wrong of exactly the same character as diversion, being an interference with the riparian owner's right to have the stream undisturbed in its quantity and manner of flow, and as a subject of injunction is governed by the same rules. (Pomeroy's Eq. Rem., sec. 563, and 26.)

The law implies a damage from the injury or violation of the right of the plaintiff. (Parke v Griswold, 17 Conn. 288, 42 Am. Dec. 739; Learned v. Castle, 78 Cal. 454, 18 P. 872, 21 P. 11; Allen v. Stowell, 145 Cal. 666, 104 Am. St. 80, 79 P. 371, 68 L. R. A. 223; City of Janesville v. Carpenter, 77 Wis. 288, 20 Am. St. 123, 46 N.W. 128, 8 L. R. A. 808; Moore v. Clear Lake Waterworks, 68 Cal. 146, 8 P. 816, Amsterdam Knitting Co. v. Dean, ...