Hall v. Washington Water Power Co.
| Decision Date | 01 June 1915 |
| Citation | 27 Idaho 437,149 P. 507 |
| Parties | D. E. HALL, Appellant, v. WASHINGTON WATER POWER CO., a Corporation, Respondent |
| Court | Idaho Supreme Court |
DAMAGES-FLOODING LAND-EVIDENCE-NONSUIT.
1. Where it was alleged that the plaintiff had been damaged by reason of the construction of certain dams in the Spokane river, and it was alleged that the plaintiff's lands were flooded by reason of said dams having raised the water level of Lake Coeur d'Alene and the creek on which his land was located, it was necessary for him to prove that such dams had raised the water level and caused the injury to his land.
2. Held, that the evidence was not sufficient to prove that the plaintiff's land was injured by reason of the maintenance of said dams.
3. Where the evidence is not sufficient to support a verdict for the plaintiff, the trial court does not err in granting a motion for a nonsuit and entering judgment of dismissal.
APPEAL from the District Court of the Eighth Judicial District for Kootenai County. Hon. R. N. Dunn, Judge.
Action to recover damages for flooding plaintiff's land. Judgment for defendant. Affirmed.
Judgment affirmed, with costs in favor of the respondent.
R. M Smith, for Appellant.
(5 Am. & Eng. Ency. of Law, 1st ed., 4.)
The fact, if it were a fact, that the forces of nature or some other cause not arising from an act of the plaintiff combined with the act of the defendant to produce the injury would not relieve the defendant from liability. (Sutherland on Pleading, sec. 4353; Learned v. Castle, 78 Cal. 454 18 P. 872, 21 P. 11; Axtell v. Northern P. Ry. Co., 9 Idaho 392, 74 P. 1075.)
John P Gray, for Respondent.
In order to take the case to the jury, there must have been some evidence that the dams of the respondent were responsible in part, at least, for the alleged injury to the appellant's land. There is no such testimony in the record. (Steel Car Forge Co. v. Chec, 184 F. 868, 107 C. C. A. 192; Richards v. Peter, 70 Mich. 286, 38 N.W. 278; Newsome v. Western Union Tel. Co., 153 N.C. 153, 69 S.E. 10; Central of Georgia Ry. Co. v. Dorsey, 116 Ga. 719, 42 S.E. 1024; Southern Ry. Co. v. Sittasen, 166 Ind. 257, 76 N.E. 973; Atchison T. & S. F. Ry. Co. v. Thomas, 70 Kan. 409, 78 P. 861.)
The burden of proof is upon the appellant to show that the dams of the respondent at least contributed to the alleged injury to his land. If the lands of the appellant are at such an elevation that they are not and cannot be affected by the dams of the respondent, then the mere fact that some other lands are affected by respondent's dams does not entitle the appellant to recover for fictitious injuries to his land.
This action was brought to recover damages alleged to have been sustained by the plaintiff, who is appellant here, for the alleged flooding of about 32 acres of his land in the years 1909, 1910 and 1911, alleged to have been caused by the erection and maintenance by the defendant of dams across Spokane river at Post Falls in Kootenai county.
The respondent in its answer admitted the construction of the dams referred to, but denied that the plaintiff's lands had been injured by the erection and maintenance thereof.
Upon the issues made the court tried the case with a jury, and after the plaintiff had introduced his evidence and rested, the respondent moved for a nonsuit and a dismissal of the action upon the ground that the plaintiff had failed to prove a sufficient case to go to the jury. The court granted said motion and entered judgment of dismissal. The appeal is from the judgment.
The main issue in the case was whether or not any of the lands of appellant were at such an elevation that the dams of respondent could in any manner affect them by flooding them. The lands of appellant are situated along a stream which flows into Lake Coeur d'Alene, which stream is subject to spring freshets. Both before and since the construction of said dams the lands of the appellant were subject to annual overflow in the spring time. Some years the flood would come earlier than in other years, and in some years it would last longer than during others. When the floods began late and remained long upon the surface of the ground, the lands flooded produced poor crops, and when the floods came early and went off early, good crops were grown on the flooded lands.
The evidence introduced on behalf of appellant showed that in the year 1909, one of the years when he claimed his lands were greatly injured, he got 98 tons of timothy and red-top hay off the 32 acres of land he claimed was injured. In the succeeding year, 1910, he got...
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Grace v. Union Electric Co.
...to support the giving of the instruction. Evans v. Massman Construction Co., 343 Mo. 632, 122 S.W. (2d) 925; Hall v. Washington Power Company, 27 Idaho 437, 149 Pac. 507; Arnold v. C. Hoffman & Son Milling Co., 93 Kans. 54, 143 Pac. 413; McLeod v. Miller and Lux, 40 Nev. 447, 153 Pac. 566. ......
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Grace v. Union Elec. Co.
... ... v. Yarborough, ... 56 Ark. 612, 20 S.W. 515; Northern California Power Co ... v. Waller, 174 Cal. 377, 163 P. 214; Beery v ... Driver, 167 ... Massman Construction Co., ... 343 Mo. 632, 122 S.W.2d 925; Hall v. Washington Power ... Company, 27 Idaho 437, 149 P. 507; Arnold v. C ... because it created silting above the dam which in turn caused ... water to back up on the plaintiff's land, plaintiff ... failed to make a case ... ...
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Young v. Washington Water Power Co.
...late in May. The evidence is thus fatally defective in this respect. We conclude that this case falls within the decision in Hall v. Washington W. P. Co., supra, rather than Petajaniemi v. Washington W. P. supra. The most that can be said for this evidence is that it perhaps creates a suspi......