Gates v. Pickett & Nelson Const. Co.

• Decision Date: 18 October 1967
• Docket Number: No. 10035,10035
• Citation: 432 P.2d 780,91 Idaho 836
• Court: Idaho Supreme Court
• Parties: Nathan E. GATES, Plaintiff-Respondent and Cross-Appellant, v. PICKETT & NELSON CONSTRUCTION CO., Defendant-Respondent, and Ernest F. Gaffney, R. Doyle Symms, and C. Ed Flandro, as Idaho Board of Highway Directors, Defendants-Appellants and Cross-Respondents.

Page 780

432 P.2d 780

91 Idaho 836

Nathan E. GATES, Plaintiff-Respondent and Cross-Appellant, v. PICKETT & NELSON CONSTRUCTION CO., Defendant-Respondent, and Ernest F. Gaffney, R. Doyle Symms, and C. Ed Flandro, as Idaho Board of Highway Directors, Defendants-Appellants and Cross-Respondents.

No. 10035.

Supreme Court of Idaho.

Oct. 18, 1967.

Jack C. Riddlemoser, Dept. of Highways, Boise, for appellant-cross-respondent, Dept. of Highways.

Gee, Hargraves & Armstrong, Pocatello, for respondent, Nathan E. Gates.

Holden, Holden & Kidwell, Idaho Falls, for respondent, Pickett & Nelson Const. Co.

SPEAR, Justice.

In plaintiff's third amended complaint, the first in which the Idaho Board of Highway Directors was made a party to the action in addition to Pickett & Nelson Construction Co. as defendants, the theory of, and the basis for, plaintiff's action is set forth in paragraphs IV and V, as follows:

'IV.

'That the defendants surveyed and relocated the plaintiff's existing water ditch and hauled in or caused to be hauled in new dirt building a ditch on top of the ground at a higher elevation and installing a small siphon under the new highway and delayed and caused delay in the delivery of the plaintiff's irrigation waters all to the detriment of his crops and the interference with his water supply.

'V.

'That the acts of the defendants in improperly reconstructing the ditch so that it became built up and clogged with dirt and operated at such an elevation that the plaintiff's crop was approximately 3,000 bales of hay less than it should have been had the water flow not been interfered with.'

Thus the action is one sounding in tort for the interference by the defendants with plaintiff's water supply through the relocation of the existing water ditch and the improper reconstruction of the same, resulting in damage to plaintiff's crops.

The pertinent facts are as follows: For about 35 years plaintiff Gates (respondent and cross-appellant herein but referred to as Gates for clarity and simplification) owned and operated a 120-acre farm located about 2 1/2 miles southwest of McCammon, Idaho. Seventy acres of this were irrigated with about 25 acres in hay land and the balance in pasture. Prior to 1964 irrigation water reached the Gates property by a ditch which followed the natural contours of the land, had no built up banks, and had capacity of delivering water in more than sufficient quantity. The exact amount of water available to Gates by use of the old ditch was never measured but the evidence discloses Gates was entitled to 105 inches in his own right and 42 inches of his neighbor's right, for a total of 147 inches. The old ditch crossed the road through a 30-to 40-foot culvert by use of which Gates encountered no trouble in receiving all the water to which he was entitled 'and more.'

In April 1964 the State Highway Department began construction of an overpass and related structures on Interstate Highway 15, and in the process of such construction is was necessary to relocate a portion of the old ditch in the vicinity of this overpass. The general and prime contractor for this construction was Pickett & Nelson Construction Co., a defendant and respondent herein. The plans and specifications provided by the Highway Department provided a 21-inch concrete siphon 416 feet in length as well as a levee built upon and above the natural contour of the land with a foot-and-a-half-deep ditch constructed at the bottom thereof. The headgate in the canal for the new ditch was installed by Boesiger Construction Company, the siphon was installed by the Idaho Concrete Products and the levee construction by McNutt Construction Company, all three companies being subcontractors of Pickett & Nelson.

The spring of 1964 was an unusually wet one, i. e., there was an unusual amount of rain. Because of this the ditch-cleaning activities of the canal company were delayed, and whereas the water was usually made available for irrigation sometime in April, it was not made available in 1964 until May 27th. However, the headwalls for the siphon and new ditch were not installed until June 2d. Thus this is the earliest date upon which water could have been turned in to the new ditch. Construction of the headwalls was the duty of Boesiger Construction Company, one of the subcontractors. Because of some difficulty with the installation of the siphon (which was the duty of Idaho Concrete Products, another subcontractor), the water was in fact not turned into the new ditch and siphon until about the 6th or 7th of June. At this time there was discovered a high spot in the new ditch which prevented the water from running as freely as it should have. This fact was relayed to Pickett p Nelson, the prime contractor, who also was responsible for the digging of the ditch, and this defect was repaired on June 11, 1964, by Pickett & Nelson. From this date the ditch was ready and available for delivery of water to the Gates property.

Gates however testified that at no time during the summer of 1964 did he receive more than one-half of the water to which he was usually accustomed through the use of the old ditch. Gates also testified that because of the diminished amount of water made available to him, he lost about one-half of his hay crop which he valued at about $1,675, and that he suffered a loss on his pasture land of $500.

There is no evidence establishing the amount of water made available to Gates in the old ditch and the only evidence adduced concerning the capacity of the new ditch established it running at the rate of 217 miners inches. This measurement was taken in August or September of 1964, but there was no substantial change in the amount of water carried by the ditch and siphon throughout the summer.

At the completion of the plaintiff's case in chief, Pickett & Nelson moved for a directed verdict or an involuntary dismissal which was granted by the trial court. The Highway Board also moved for an involuntary dismissal at this time, but this was denied. At the completion of the entire case, the Highway Board again moved for a directed verdict which was again denied by the trial court. The jury brought in the verdict in favor of the plaintiff Gates and against the defendant State of Idaho in the amount of $3,500. Judgment in this amount was entered by the clerk of the court on September 13, 1966. Upon motion by the Highway Board for a judgment notwithstanding the verdict the trial judge granted a reduction in the verdict to $2000 and judgment in this sum was entered on the 18th day of October, 1966. From this judgment the Highway Board appealed, and Gates cross-appealed, additionally appealing from the order granting the involuntary dismissal as against Pickett & Nelson.

The principal contention of the Highway Board throughout the entire course of this litigation since it was made a party thereto, has been simply that Gates' action as alleged in this third amended complaint it one sounding in tort for which the Highway Board, as an instrumentality of the State of Idaho, is immune concerning any damages resulting therefrom. This was first raised in a motion to dismiss the complaint as to the Highway Board, which motion was later treated as one for a summary judgment under Rule 12(b) I.R.C.P. In an affidavit by the Commissioner of Insurance for the State of Idaho, attached to the motion for summary judgment, it was established, without contradiction, that the State of Idaho had no insurance in force and effect during the summer of 1964 covering negligent acts of employees of the State of Idaho and the Idaho Department of Highways in the design, construction and maintenance of state highways in the State of Idaho.

In the memorandum decision, which disposed of this motion for summary judgment, the trial judge carefully pointed out that while the State of Idaho was not subject to suit by reason of torts unless covered by insurance, the Highway Board would be obligated to compensate any landowner if there had been a taking of property without compensation. The trial judge then specifically pointed out the problem in this language:

'If in this instance they have taken the property of the plaintiff by failure to adequately provide for the flow of water, which plaintiff is entitled to, it in effect, amounts to a taking by the State and they should be required to compensate the landowner for such taking, even though such taking may have been by reason of error in the engineering, or by error on the part of their employees in directing the construction of the channel in question.'

It is important to note that this memorandum decision is dated the 20th of April, 1966. The trial began on the morning of September 9, 1966, a period just a few days short of five months, during which no attempt was made by Gates to amend the third amended complaint to properly plead an inverse condemnation action against the Highway Board. A motion to amend after the jury had already been chosen and the parties prepared for immediate trial was properly denied by the trial court. I.R.C.P. 15(a).

That the State of Idaho and any of its subdivisions or departments, such as the Board of Highway Directors, are immune from liability for the torts of their employees unless such immunity has been waived to the extent of liability insurance obtained by the State or its subdivision, is a rule of long standing in Idaho. Davis v. State, 30 Idaho 137, 163 P. 373; State v. Parsons, 58 Idaho 787, 80 P.2d 20; Pigg v. Brockman, 79 Idaho 233, 314 P.2d 609; and Bare v. Department of Highways, 88 Idaho 467, 401 P.2d 552. Particularly applicable is the following language from Bare v. Department of Highways, supra:

'The Department of Highways is an administrative department of the state government. I.C. § 40-111. In the absence of consent or waiver of sovereign immunity by the legislature, neither the highway department, nor any of its officers or agents, can subject the state...