Hayes v. Flesher

• Decision Date: 26 May 1921
• Citation: 198 P. 678,34 Idaho 13
• Parties: E. K. HAYES, Appellant, v. A. A. FLESHER and SARAH C. FLESHER, Respondents
• Court: Idaho Supreme Court

198 P. 678

34 Idaho 13

E. K. HAYES, Appellant, v. A. A. FLESHER and SARAH C. FLESHER, Respondents

Supreme Court of Idaho

May 26, 1921

PLEADING AND PRACTICE-WATER AND WATER RIGHTS-MUTUAL MISTAKE-DEEDS-INDEFINITE DESCRIPTION.

1. Permission to amend an answer during the progress of the trial is within the sound discretion of the trial court.

2. In proper cases, defendant in an action may allege mutual mistake as a defense without praying for reformation of the instrument.

3. The evidence to establish a mutual mistake must be satisfactory clear and convincing.

4. Where the grantor in a deed has received the consideration therefor, the instrument should be construed most strongly against him and be upheld, if it can be done, by a reasonable construction of its terms. Parol testimony may be introduced to explain an ambiguity or uncertainty in a deed.

5. Where a contract for conveyance of land contains, as part of the description, "a perpetual right to take sufficient water from the ditches and laterals of the grantors adjacent and near thereto for the irrigation" of the land conveyed, it is incumbent upon the grantees claiming under such conveyance to show exactly what was intended by the provision for a water right, and that they had not exceeded their rights under such contract.

APPEAL from the District Court of the Seventh Judicial District, for Gem County. Hon. Ed. L. Bryan, Judge.

Action to enjoin interference with irrigation water. Judgment for defendants. Reversed and remanded.

Judgment reversed and cause remanded. Costs awarded to appellant.

J. P Reed, for Appellant.

Where a party to an action, either plaintiff or defendant, sets out and pleads an instrument, he is not entitled to produce oral evidence that there was a mutual mistake in its execution unless he seeks to reform or rescind that instrument, and lays by proper allegations the foundation for such reformation or rescission. (Van Horn v. Van Horn, 49 N.J. Eq. 327, 23 A. 1079; Van Syckel v. Dalrymple, 32 N.J. Eq. 233; Follett v. Heath, 15 Wis. 601; Lombard v. Cowham, 34 Wis. 486; Frost v Brigham, 139 Mass. 43, 29 N.E. 217; Pierson v. McCahill, 21 Cal. 122.)

The proof in such a case "should be so clear and convincing as to leave no room for doubt." (Cox v. Woods, 67 Cal. 317, 7 P. 722.)

A deed, when executed and delivered, is a written contract; and the acceptance of the deed is the consummation of the written contract. (13 Cyc. 519-521, 572, and cases cited.)

A party will not be relieved of a contract on the grounds of mistake when it was in his power to have a stipulation inserted that would have fully protected him. (Jensen v. McConnell Bros., 31 Idaho 87, 169 P. 292; 1 Elliott on Contracts, p. 110.)

Neither party was entitled to a jury. The special findings of the jury were advisory only. It was within the discretion of the trial court to reject or adopt any findings, or to prepare entirely independent findings. (Brady v. Yost, 6 Idaho 273, 55 P. 542; Pritchard v. Butler, 4 Idaho 518, 43 P. 73; Gordon v. Lemp, 7 Idaho 677, 65 P. 444; Curtis v. Kirkpatrick, 9 Idaho 629, 75 P. 760; Fairview Investment Co. v. Lamberson, 25 Idaho 72, 136 P. 606; Houser v. Austin, 2 Idaho 204, 10 P. 37.)

Finley Monroe, for Respondents.

Where through mistake of the parties an essential element of the contract is omitted and thereby the contract fails to express the intent of the parties, in courts of equity parol evidence is admissible to prove such mistake. (Phoenix Fire Ins. Co. v. Hoffheimer, 46 Miss. 645, 658; Cook v. Sterling Electric Co., 150 F. 766, 80 C. C. A. 502; Gottfried v. Bray, 208 Mo. 652, 106 S.W. 639; El Dia Ins. Co. v. Sinclair, 228 F. 833, 143 C. C. A. 231; Stewart v. Blue Grass Canning Co., 133 Ky. 118, 117 S.W. 401; McLaughlin v. Leonhardt, 113 Md. 261, 77 A. 647; Greiner v. Swartz, 167 Iowa 543, 149 N.W. 598.)

Amendments of pleadings rests largely in the discretion of the court, and unless the exercise of such discretion deprives the complaining party of some substantial right, the action of the trial court will not be disturbed. (Idaho Placer Mining Co. v. Green, 14 Idaho 294, 94 P. 161; Small v. Harrington, 10 Idaho 499, 79 P. 461; Mantle v. Jack Waite Min. Co., 24 Idaho 613, 135 P. 854, 136 P. 1130; The Mode v. Myers, 30 Idaho 159, 164 P. 91; Dunbar v. Griffiths, 14 Idaho 120, 93 P. 654; C. S. 6726.)

"Under proper pleadings the defendant may have the mistake corrected in the same proceedings by showing the actual agreement; this is especially true in those states where the modern system of pleadings has been adopted." (Jones, Evidence, p. 550; Bradford v. Union Bank, 13 How. (U. S.) 57, 14 L.Ed. 49, see, also, Rose's U. S. Notes; Quinn v. Roath, 37 Conn. 16; McComas v. Easley, 21 Gratt. (Va.) 23; Chambers v. Livermore, 15 Mich. 381; Murphy v. Rooney, 45 Cal. 78.)

The special findings of a jury in an equity case being merely advisory, instructions given or refused by the court are immaterial and will not be reviewed on appeal. (Kelly v. Perrault, 5 Idaho 221, 48 P. 45; Daly v. Josslyn, 7 Idaho 657, 65 P. 442; Gordon v. Lemp, 7 Idaho 677, 65 P. 444; Danielson v. Gude, 11 Colo. 87, 17 P. 283; Branger v. Chevalier, 9 Cal. 353.)

RICE, C. J. Budge, McCarthy, Dunn and Lee, JJ., concur.

OPINION

RICE, C. J.

This action was brought by appellant to enjoin respondents from using irrigation water and interfering with irrigation ditches situate upon lands belonging to the wife of appellant and controlled by him. The irrigation water is represented by shares of capital stock of the Last Chance Ditch Company, a corporation, the certificates of stock being held by appellant as his separate property. On March 17, 1917, appellant and his wife, by warranty deed, conveyed to Sarah C. Flesher, one of the respondents, about an acre of land out of said tract, the deed containing no mention of water or water rights. By agreement of the parties made at the time of the conveyance, appellant removed the ditch connected with his system of laterals from the acre tract so conveyed. Subsequent to the conveyance the respondents constructed a ditch from the laterals of appellant to the acre of land, and during the irrigation season of 1917, and thereafter, took from appellant's laterals sufficient water to irrigate the acre tract. The testimony showed that they irrigated about once every two weeks, taking a sufficient amount of water to irrigate the tract in about two hours' time. The court found that they exercised due care in conducting their irrigation, and did not permit water to overflow the lands controlled by appellant.

In their answer as originally filed, respondents set up by way of defense that appellant and his wife sold to them, for a valuable consideration, "one acre of land with the perpetual right to take sufficient water from said ditches and laterals adjacent and near thereto for the irrigation thereof." During the trial, respondents were granted permission by the court to amend their answer by setting up the following additional matter: "That by mutual mistake of the parties the right to the use of said water for said land was omitted from the deed of conveyance."

A jury was impaneled by the court to advise on special issues of fact. At the conclusion of the trial, the court filed its decision and entered judgment denying the prayer of the complaint for an injunction. The appeal is from the judgment.

It appears to be conceded that the deed as originally executed did not carry with it any water right as appurtenant to the land.

Appellant's first specification of error is that the court erred in permitting respondents to amend their answer during the progress of the trial. We think the court did not abuse its discretion in permitting the amendment. (The Mode, Ltd., v. Myers, 30 Idaho 159, 164 P. 91.)

The next specification of error is to the effect that the amendment as made did not justify the introduction of parol testimony for the purpose of proving a mutual mistake in the execution of the deed, for the reason that respondents had not laid a proper foundation in that they had failed to ask for a reformation of the deed. In proper cases a defendant in an action may allege mutual mistake as a defense without praying for reformation of the instrument. (Udelavitz v. Ketchen, 33 Idaho 165, 190 P. 1029.) The evidence necessary to establish mutual mistake in such cases is the same as though a reformation of the instrument were prayed for. The proof must be satisfactory, clear and convincing. (Udelavitz v. Ketchen, supra.)

The court instructed the jury that the burden rested upon the respondents to prove their affirmative allegations by a preponderance of the evidence. This instruction may indicate the standard adopted in making the subsequent findings, but whether it does or not, we cannot say from a review of the proof offered by respondents that the court did not find the proof of mutual mistake to be clear and convincing. This court would not be justified in holding that the evidence was insufficient to sustain the findings of the court in that respect. The court's finding in this matter was to the effect that Elsie Wardell Hayes, wife of appellant, sold respondents a one-acre tract of land, describing it, for $ 425, "with a perpetual right to take sufficient water from aforesaid ditches and laterals of the plaintiff adjacent and near thereto for the irrigation of said acre of land."

The fifth finding is as follows: "That it was the intention of plaintiff and defendants to include in said deed a conveyance of said water right for said land bought by the defendants, but that the same was omitted from the deed."

The court did not find that the omission was occasioned through mutual mistake of the parties. However, if it...