Gaskill v. Washington Water Power Co.

• Decision Date: 29 October 1909
• Citation: 105 P. 51,17 Idaho 128
• Parties: WALTER S. GASKILL, Respondent, v. WASHINGTON WATER POWER CO., Appellant
• Court: Idaho Supreme Court

105 P. 51

17 Idaho 128

WALTER S. GASKILL, Respondent, v. WASHINGTON WATER POWER CO., Appellant

Supreme Court of Idaho

October 29, 1909

DAMAGES-FLOODING LAND-DEFENSES WAIVED-INVITED ERRORS.

1. Where an action is brought to recover damages for loss of hay crop caused by flooding plaintiff's land, and an injunction prayed for to prevent a repetition of such flooding, and the defendant by its answer sets up several separate defenses, and when the case is called for trial moves to have the court refer the cause to a master in chancery to determine the measure of damages that plaintiff would be entitled to, as if the defendant were condemning the right to flood and overflow the plaintiff's land permanently and perpetually, and such reference is made over the objection of the plaintiff, and the cause is tried by the referee and his finding and decision reported to the court and the court enters judgment thereon and in accordance therewith, on an appeal therefrom the defendant will not be permitted to take advantage of the error made by the court in referring the case to a referee, for the reason that it invited the court to make the error.

2. The parties to an action must act consistently, and they will not be heard on appeal to complain of errors made by the trial court which they themselves invited and procured the court to make.

3. Held, that the defendant invited the error made by the court and thereby changed the theory upon which the action was brought and turned it into a condemnation proceeding, and thereby waived the special defenses pleaded in its answer.

4. The evidence held sufficient to sustain the judgment.

(Syllabus by the court.)

APPEAL from the District Court of the Eighth Judicial District, for the County of Kootenai. Hon. W. W. Woods, Judge.

Action to recover damages for flooding plaintiff's land. Changed at the request of the defendant to a condemnation suit. Judgment for plaintiff. Affirmed.

Judgment affirmed, with costs in favor of respondent.

George Turner, H. M. Stephens, Gray & Knight, and Wm. K. Shissler for Appellant.

Final judgment cannot be rendered in a cause until the case has been brought to issue, and the plaintiff and defendant have had their day in court upon all the issues raised. (Kennard v. Louisiana, 92 U.S. 480, 23 L. ed. 478; Hagar v. Reclamation Dist., 111 U.S. 701, 4 S.Ct 663, 28 L. ed. 569; Pennoyer v. Neff, 95 U.S. 714, 24 L. ed. 565; Simon v. Craft, 182 U.S. 427, 21 S.Ct. 836, 45 L. ed. 1165; Hovey v. Elliott, 167 U.S. 409, 17 S.Ct. 841, 42 L. ed. 215.) Even where the case has been brought to issue, a failure of the trial court to find on all the material issues necessary to the judgment will necessitate a reversal. (Uhrlaub v. McMahon, 15 Idaho 346, 97 P. 784; Brown v. Macey, 13 Idaho 451, 90 P. 339; Carson v. Thews, 2 Idaho 176, 9 P. 605; Wilson v. Wilson, 6 Idaho 597, 57 P. 708; Standley v. Flint, 10 Idaho 629, 79 P. 815; State v. Baird, 13 Idaho 126, 89 P. 298; Later v. Haywood, 14 Idaho 45, 93 P. 374; Bowman v. Ayers, 2 Idaho 305, 13 P. 346; Wood v. Broderson, 12 Idaho 190, 85 P. 490; Hihn v. Peck, 30 Cal. 286; Christy v. Spring Valley Waterworks, 84 Cal. 541, 24 P. 307.)

Kerns & Ryan, for Respondent.

The parties to a suit must act consistently, and they will not be heard to complain of errors which they have themselves committed, or have induced the trial court to commit. (Walton v. Chicago etc. Ry. Co., 56 F. 1006, 6 C. C. A. 223; Long v. Fox, 100 Ill. 43-50; Noble v. Blount, 77 Mo. 235; 3 Cent. Dig. 3591.)

SULLIVAN C. J., AILSHIE, J. Stewart, Ailshie, JJ., and Sullivan, C. J., concurring.

OPINION

SULLIVAN, C. J.

This action was brought to recover the value of a crop of hay grown on the lands of the plaintiff, which crop of hay, it is alleged, of the value of $ 480, was destroyed by the defendant's overflowing the land of the plaintiff, and to obtain a temporary restraining order during the pendency of the cause and for a permanent injunction thereafter.

It is alleged in the complaint that the defendant is a corporation organized and existing under and by virtue of the laws of the state of Washington; that in 1899 the plaintiff settled upon a part of the public domain under the homestead laws of the United States and thereafter procured a patent to said land from the United States; that said land is situated adjacent to the Coeur d'Alene river, which river empties into the Coeur d'Alene lake; that defendant, prior to the month of July, 1907, constructed a dam across Spokane river at Post Falls in Kootenai county, which river is the outlet of Coeur d'Alene lake, and that said dam was so constructed as to control and obstruct the natural flow of the waters from said lake; that in the month of July, 1907, the waters of said lake were so obstructed by means of said dam as to cause the water in said lake to rise and flow backward up the Coeur d'Alene river and overflow about forty acres of the meadow land of the plaintiff, upon which land a crop of hay had grown and matured, thereby totally destroying said crop of hay to the injury and damage of the plaintiff in the sum of $ 480; that said dam is of a permanent character and so arranged as to cause the water of Coeur d'Alene lake and Coeur d'Alene river to rise to such an extent as to overflow said forty acre tract of land; and that unless said defendant is restrained and enjoined by the court, it will obstruct the natural drainage of said lake during the following years so as to cause said land of plaintiff to be annually overflowed, and thus destroy the growing crops of plaintiff thereon.

An answer was filed by the defendant denying the most of the material allegations of the complaint and setting up as an affirmative defense that it had constructed a new dam in the Spokane river at Post Falls, with a mechanical contrivance known as a "bear-trap," whereby in periods of low water the crest of the dam was raised feet above its ordinary level and made to slightly retard the flow of the waters of Lake Coeur d'Alene and of the river; that it owns the land at Post Falls, and that it is engaged in generating electrical power by means of said dam, bear-trap and falls, and selling such electrical power to certain inhabitants of Idaho as well as to the city of Spokane and other parties; that it has made certain contracts to furnish such power, and without using said bear-trap it cannot comply with said contract; that the bear-trap, when raised, will not raise the water of the river and lake to high-water mark or to a point which will overflow or in any manner disturb the lands of plaintiff; that it commenced the construction of said dam in 1904 and finished the same in 1907; that sometime during the year 1907, the respondent verbally agreed with appellant, by way of compromise of his claim against appellant for overflowing said land, to accept $ 20 per acre for the land overflowed by means of said bear-trap, and that appellant in reliance upon that agreement, at an expense of more than $ 40,000, thereafter purchased of other owners of lands along said river, similarly situated, overflow rights on their said lands amounting to more than 2,000 acres, and that respondent is barred of relief by his laches and the statute of limitations.

As another and separate defense, the defendant averred that it constructed said dam, and it was designed and intended to hold and control the flow of the waters of Coeur d'Alene lake and its tributary waters in order that the same might be conserved and flow off gradually as the interests of the defendant for power might require; that plaintiff's land and most of the land of the valley of the Coeur d'Alene river is subject to annual overflow, which covers the land from the early months of spring until about the middle of July each year, rendering the land useful only for grass that grows thereon after the overflow waters recede; that notwithstanding it is advised and believes it has the legal right to overflow the land by means of its dams and works, by reason of the inferior character of the land which would be overflowed, it has endeavored to buy its peace amicably from all persons claiming to have land overflowed, including the plaintiff in this suit, by offering to them the full value of their land; that it offered to pay plaintiff $ 20 per acre for all land of his overflowed, and has settled and executed overflow rights from a large number of other land owners. The answer of appellant is a plea that it has a right to overflow said land, and that plaintiff has no legal right to recover any damages from it.

Upon said pleadings and some affidavits, the respondent's motion for a preliminary restraining order came on to be heard on August 3, 1908, at which time the defendant requested the judge to make and enter the following order:

"It is further ordered that be and he is hereby appointed as master in chancery and referee to take and hear testimony of and concerning the issues involved herein as to the extent of plaintiff's property overflowed by reason of defendant's dams and the value of said property at the time of the overflow thereof in the year 1907, and find and assess the damages that plaintiff is entitled to, that is the same damage and measure of damages that plaintiff would be entitled to if defendant was condemning the right to flood and overflow plaintiff's land permanently and perpetually.

"It is further ordered that the expense of taking testimony by said master in chancery and referee shall be the same as if defendant was condemning.

"It is further ordered that if the defendant shall pay into court the sum and costs fixed by the master and referee, within thirty days after notified of the amount thereof by the master and referee, no injunction will issue,...