Groefsema v. Mountain Home Co-Operative Irrigation Co.

• Decision Date: 26 May 1920
• Citation: 33 Idaho 86,190 P. 356
• Parties: CLAY GROEFSEMA, Respondent, v. MOUNTAIN HOME CO-OPERATIVE IRRIGATION COMPANY, Appellant. JOHN GROEFSEMA, Respondent, v. MOUNTAIN HOME CO-OPERATIVE IRRIGATION COMPANY, Appellant. CORNELIA GROEFSEMA and HARM GROEFSEMA, Her Husband, Respondents, v. MOUNTAIN HOME CO-OPERATIVE IRRIGATION COMPANY, Appellant
• Court: Idaho Supreme Court

190 P. 356

33 Idaho 86

CLAY GROEFSEMA, Respondent, v. MOUNTAIN HOME CO-OPERATIVE IRRIGATION COMPANY, Appellant.

JOHN GROEFSEMA, Respondent, v. MOUNTAIN HOME CO-OPERATIVE IRRIGATION COMPANY, Appellant.

CORNELIA GROEFSEMA and HARM GROEFSEMA, Her Husband, Respondents, v. MOUNTAIN HOME CO-OPERATIVE IRRIGATION COMPANY, Appellant

Supreme Court of Idaho

May 26, 1920

EVIDENCE-ADMISSIONS-INSTRUCTIONS-DAMAGES-MEASURE OF-NONSUIT-VERDICT-GENERAL-SPECIAL-CORRECTING-IRRIGATION-WATER DEEDS-RIGHTS UNDER.

1. In an action for damages for alleged failure to deliver, during an irrigation season, the amount of water called for by water deed, evidence of certain conversations with officers of appellant company, wherein they told witness the company would begin to deliver water the first day of May, was properly admitted, and it being conceded under the warranty in the water deed that delivery was to begin on that date, no prejudice could result therefrom.

2. Under such circumstances evidence of failure to deliver water from the 1st until the 12th of May was properly admitted as bearing upon the matters which gave rise to respondents' alleged damages, in connection with other evidence showing that the proper amount of water was not delivered during the season.

3. Testimony of a witness that he received a certain amount of water on a portion of his land was not subject to motion to strike. It was competent to show the amount of water applied to each tract separately, and by a simple mathematical calculation to show that the obligation in the deed to furnish two acre-feet per acre had not been fulfilled.

4. Prejudicial error cannot be predicated upon the refusal of the court to strike out the testimony of a witness estimating his damages for the loss of pasture at $20 per acre where upon cross-examination he gave as his reasons therefor that it would cost him that amount to buy like pasture, or feed to take the place thereof, no other pasture being available, and there being no substantial conflict as to the estimate of damages to the pasture, between the testimony of witnesses for appellant and respondent.

5. Where a motion for a nonsuit is made at the close of respondent's case, and appellant thereafter adduces evidence in support of the defense, the motion is not reviewable upon appeal.

6. A printed notice published by appellant containing the statement that it had more water in its reservoir at the close of the 1914 season than was ever stored in the reservoir at the commencement of any irrigation season in the history of the project, excepting 1914; that the tunnels and flumes had been repaired, ditches enlarged, and while the snowfall during the winter months had been a little below the average, no farmer under the system had occasion to be exercised as to the water supply for 1915, was properly admitted as an admission bearing upon the quantity of water which the company actually had stored in its reservoir for the 1915 season.

7. Where all the evidence affirmatively shows that appellant company had 8,000 acre-feet of water stored in its reservoir at the beginning of the irrigation season; that during the season it furnished only a fraction over one acre-foot of water per acre to 3,300 acres of land, and no explanation is offered as to what became of the remainder of the water, or why it was impossible to deliver more water to respondents who were entitled under their water deeds to two acre-feet per acre, the evidence is sufficient to sustain a verdict awarding respondents damages for the failure, neglect or refusal of appellant to deliver to respondents the amount of water to which they were entitled by their deeds.

8. Where three cases involving the same issues are tried as one case, and the jury return a like general verdict in each case, and their special verdicts in two of the cases sustain the general verdict but the special verdict in the other case does not sustain the general verdict, all based upon the same evidence, it is proper for the trial court to send the latter case back to the jury for further consideration, upon the principle that the court may permit the jury to show the verdict which they found and intended to return, since it is apparent under all the circumstances that the rendition of the special verdict in this case was the result of inadvertence.

9. Under such circumstances the provision of C. S., sec. 6861 which requires that "where a special finding of fact is inconsistent with the general verdict the former controls the latter and the court must give judgment accordingly," is not applicable.

APPEAL from the District Court of the Fourth Judicial District, for Elmore County. Hon. James R. Bothwell, Judge.

Actions for damages to crops for failure to deliver water in accordance with water deeds. Judgments for plaintiffs. Affirmed.

Judgments affirmed. Costs awarded to respondents.

Sullivan & Sullivan and W. C. Howie, for Appellant.

"Where a special finding of fact is inconsistent with the general verdict the former controls the latter and the court must give judgment accordingly." (C. S., sec. 6861.) It was clearly the duty of the court to receive the special interrogatories and their answers thereto by the jury and their verdict thereon. (Special Verdicts by Clementson, p 137.)

Where the evidence is insufficient to support the findings or verdict, the judgment or verdict must be reversed. (Kelly v. Oregon Short Line & U. N. R. Co., 4 Idaho 190, 38 P 404; Commercial Bk. v. Lieuallen, 5 Idaho 47, 46 P. 1020; Work Bros. v. Kinney, 7 Idaho 460, 63 P. 596; Zienke v. Northern P. R. Co., 8 Idaho 54, 66 P. 828; Small v. Harrington, 10 Idaho 499, 79 P. 461; Wood v. Broderson, 12 Idaho 190, 85 P. 490; Rippetoe v. Feely, 20 Idaho 619, 119 P. 465; Furey v. Taylor, 22 Idaho 605, 127 P. 676; McDonnell v. Jones, 25 Idaho 551, 138 P. 1123; Constantine v. McDonald, 25 Idaho 342, 137 P. 531; Walter v. Dixon, 29 Idaho 26, 157 P. 250.)

E. M. Wolfe and Daniel McLaughlin, for Respondents.

In an action for the recovery of money only, or specific real property, the jury, in their discretion, may render a general or special verdict. (Fodey v. Northern P. Ry. Co., 21 Idaho 713, 123 P. 835; Shaw Lumber Co. v. Manville, 4 Idaho 369, 39 P. 559.)

"An appellate court will not disturb the verdict of the jury or the judgment of a trial court because of conflict in the evidence when there is sufficient proof, if uncontradicted, to sustain it." (Ross v. Kerr, 30 Idaho 492, 167 P. 654, and cases cited.)

BUDGE, J. Morgan, C. J., and Rice, J., concur.

OPINION

BUDGE, J.

This appeal involves three actions raising essentially the same issues. They were tried together to the same jury and all of the evidence embodied in one record. Separate verdicts were returned in each case and judgments entered on each verdict respectively. A separate appeal was taken from each judgment but the entire proceeding has been briefed as upon a single appeal and presented to us upon one hearing. The actions were brought to recover damages alleged to have been sustained by the loss of crops occasioned by the failure of appellant to deliver to respondents two acre-feet of water, for each acre of land owned by them, during the irrigation season of 1915. It is alleged that by the contract of purchase and deed of conveyance of respondents' water rights appellant warranted to deliver to each of respondents the above quantity of water, that during the irrigation season of 1915 appellant disregarding its guaranty failed, refused and neglected to deliver to respondents water in excess of one acre-foot per acre, resulting in the damage claimed.

Appellant in its answers to the various complaints admits that it did not deliver two acre-feet of water per acre, but denies that it failed, refused or neglected to deliver water in excess of one acre-foot per acre, and as an affirmative defense sets forth the deeds to said water rights, placing especial reliance upon paragraph 4 thereof, which, so far as material, is as follows:

"In case of shortage of water in the Company's reservoir or canal system through an accident, drought, or scarcity in any natural stream supplying said canal or by reason of improper diversion of water by any person, or from any cause beyond its control, the company shall not be liable for such shortage, nor for any damage caused thereby, nor shall there be, by reason thereof, any deduction from any sum agreed to be paid to the company by the purchaser."...