Gibbert v. The Washington Water Power Company

Citation115 P. 924,19 Idaho 637
PartiesHENRY GIBBERT and MARY A. DONOVAN, Respondents, v. THE WASHINGTON WATER POWER COMPANY, Appellant
Decision Date04 April 1911
CourtUnited States State Supreme Court of Idaho

CHANGE OF VENUE-SHOWING OF PREJUDICE-DISCRETION OF TRIAL COURT.

(Syllabus by the court.)

1. An application for a change of venue is addressed to the sound legal discretion of the trial court, and the decision reached by the trial court on such matter will not be reversed on appeal unless the showing made is such as to convince the appellate court that the trial court has abused such discretion.

2. In determining whether or not a trial court has abused the discretion vested in it in denying a motion for change of venue, some weight and consideration may be given to the fact that the judge is personally acquainted with a large number of the citizens of the counties of his district, and is in a large degree familiar with the sentiment prevailing in his district touching questions of public importance, and those matters which necessarily attract the attention of the press and the public generally.

3. An application for change of venue ought to be supported by the affidavits of persons who have either been over the county generally, or through large communities thereof, and have heard the citizens generally express themselves in regard to the matter at issue, or by residents of different portions of the county who know of the sentiment prevailing in their respective communities.

4. The facts disclosed by the showing made in this case examined and held, that there was no abuse of discretion in the ruling of the trial judge denying the application for change of venue.

APPEAL from the District Court of the Eighth Judicial District, for Kootenai County. Hon. Robert N. Dunn, Judge.

Action for damages. Motion by defendant for change of venue. Application denied and defendant appealed. Affirmed.

Order affirmed. Costs awarded in favor of respondent.

Gray &amp Knight and Charles L. Heitman, for Appellant.

The "prejudice or local influence" which the law means to make the ground for removal may relate to the person of the litigant or to the subject matter of the litigation, and in all cases where there exists bias, partiality or unreasonable predilection in the local communities or courts which will work injustice or prevent the party asking the removal from obtaining justice, the case should be removed and when such conditions are shown to exist it is an abuse of discretion on the part of the trial court to refuse this change.(Richardson v. Augustine, 5 Okla. 667, 49 P. 930; Omaha So. Ry. Co. v. Todd, 39 Neb. 818, 58 N.W. 289; Gandy v. Bissel's Estate, 81 Neb. 102, 115 N.W. 571; State ex rel. etc. v. Superior Court, 40 Wash. 443, 111 Am. St. 915, 82 P. 875, 2 L. R. A., N. S., 568, 5 Ann. Cas. 775; Buck v. Eureka, 97 Cal. 135, 31 P. 845; Packwood v. State, 24 Ore. 261, 33 P. 674; Dowling v. Allen, 88 Mo. 293; State ex rel. Schonhoff v. O'Bryan, 102 Mo. 254, 14 S.W. 933; Ott v. McHenry, 2 W.Va. 73; Cyra v. Stewart, 79 Wis. 72, 48 N.W. 50; Little v. Wyoming County, 214 Pa. 596, 63 A. 1039; Brittain v. Monroe Co., 214 Pa. 648, 63 A. 1076, 6 Ann. Cas. 617.)

The right to a change of venue is a right belonging to either party to the action, and the word "may" as used in the section means "must," and when the facts and circumstances which make it appear that a fair and impartial trial cannot be had are shown to the court, the judge should award the change of venue. (In re Brown, 2 Okla. 590, 39 P. 469; Richardson v. Augustine, supra; Kansas P. R. Co. v. Reynolds, 8 Kan. 623; Janes v. American Cent. Ins. Co. (Kan.), 109 P. 1077; Griffin v. Leslie, 20 Md. 15; Stockwell v. Township Board, 22 Mich. 341.)

A showing that the struggle respecting the matter in controversy has been bitter, and the subject of public meetings and comment and agitation in newspapers has been held sufficient to grant the change. (Jacob v. Oyster Bay, 119 A.D. 503, 104 N.Y.S. 275; Shipp v. Commonwealth, 124 Ky. 643, 99 S.W. 945, 10 L. R. A., N. S., 337; Udall v. Long Island R. Co., 2 How. Pr. (N. Y.) 138.)

Ezra R. Whitla, for Respondents.

In this case the showing made on the part of appellant is not so strong and conclusive as to show an abuse of discretion on the part of the court in denying the motion. The fact that appellant is engaged in litigation with other parties in Kootenai county, and that there is more or less feeling among those involved in that litigation, is no reason for changing the the place of trial in this case. While the affidavits submitted on the part of appellant allege bias and prejudice against appellant in Kootenai county to such an extent as to prevent appellant from having a fair trial of this case in that county, those allegations are as strongly denied on the part of respondents. (State v. Rooke, 10 Idaho 403, 79 P. 82; Hyde v. Harkness, 1 Idaho 601; Shirley v. Nodine, 1 Idaho 696; Sommercamp v. Catlow, 1 Idaho 722.)

STEELE, District Judge. Ailshie, Presiding J., concurs. SULLIVAN, J., Dissenting.

OPINION

STEELE, District Judge.

This action was brought by the plaintiffs to recover damages on account of the lands of the plaintiffs being overflowed by water, caused, as alleged, by a dam constructed by the defendant. The action was commenced in Kootenai county, and, after the cause was at issue, the defendant, the Washington Water Power Company, moved the trial court for a change of the place of trial from Kootenai county, on account of the bias and prejudice of the citizens of that county. Affidavits were filed in support of the motion and in opposition thereto; the trial court made an order overruling the motion, from which an appeal was taken to this court. The only question presented is as to whether the facts disclosed are such as to show that the trial court abused its discretion in refusing to grant the motion.

In support of the motion six affidavits were filed by the appellant, and the same number by the plaintiffs and respondents in opposition thereto. The principal affidavit in support of the motion is made by H. L. Bleeker. Said affiant states that he is the secretary of the Washington Water Power Company, gives a history of the building of the dam, whereby it is claimed the water was raised above its normal level upon streams and lakes affected by the construction of the dam, shows certain permits granted by the government of the United States granting to the Washington Water Power Company the right to overflow and hold waters upon certain low lands on the Coeur d'Alene Indian Reservation; shows that a large number of persons along the St. Joe and Coeur d'Alene rivers and different lakes have claimed to be damaged by the overflowing of their lands, which they claim was caused by the said dam, and that a large number of such persons petitioned the Secretary of the Interior to revoke the permit which had been given to the Washington Water Power Company to overflow the Indian lands, and procured hundreds of signers thereto; that at the hearing of this application in Coeur d'Alene City, Idaho, the county seat of Kootenai county, a large number of such persons appeared as witnesses; that public meetings were held during said hearings, and that persons living along the St. Joe and Coeur d'Alene rivers, who claimed to be affected thereby, were in attendance; that in addition thereto certain persons, claiming to be affected by said dam, had petitions circulated among the taxpayers, residing along the St. Joe, St. Maries and Coeur d'Alene rivers, requesting the county commissioners of Kootenai county to take steps to prevent the overflow of lands along said rivers; two hundred and seventy-eight persons signed this petition; that by a subsequent petition the board was requested to make an appropriation to protect the roads of the county, which, as it was claimed by the petition, were being undermined and washed out, and the bridges theretofore erected were being washed away at points on the Coeur d'Alene river; and that the said board of county commissioners of Kootenai county upon the first petition, made an order as follows: "Petition approved. Prosecuting attorney ordered to take such action as the facts warrant." And that the said board of county commissioners did appropriate the sum of $ 1,000 to aid in carrying on the hearing.

The affidavit further states, in substance, that during the said hearing, and at different times, various newspapers published articles concerning the effect of the said dam. These articles are shown to have been published in several papers. Only two of those mentioned were located in Kootenai county, the others being published in the city of Spokane, Washington, and having a circulation in Kootenai county.

Exhibit No. 16, which is made a part of the affidavit of Bleeker published in the "Spokane Daily Chronicle," is as follows:

"Coeur d'Alene, Jan. 28.--(Special Correspondence.)--Kootenai County and the State of Idaho will be lined up together against the Washington Water Power Company in the backwater fight. A petition signed by all taxpayers along the St. Joe, St. Maries and Coeur d'Alene rivers was presented to the County Commissioners today, asking that steps be taken to prevent the overflow of land from Harrison to Cataldo, due to the dam at Post Falls.

"They further stated in the petition that the county roads had been overflowed, bridges destroyed, making a total damage to the county of $ 6,000 in the last two years. If the dam is not done away with, a further damage of $ 5,000 will be incurred they declare. The commissioners approved the petition, and referred the matter to the County Attorney, C. H. Potts, instructing him to take the necessary legal steps to protect the county's interest. This action practically...

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