Hunter Canal Co. v. Robertson's Heirs

• Decision Date: 20 June 1904
• Docket Number: 15,091
• Citation: 113 La. 833,37 So. 771
• Parties: HUNTER CANAL CO., Limited, v. ROBERTSON'S HEIRS
• Court: Louisiana Supreme Court

37 So. 771

113 La. 833

HUNTER CANAL CO., Limited, v. ROBERTSON'S HEIRS

No. 15,091

Supreme Court of Louisiana

June 20, 1904

Rehearing denied January 16, 1905.

Appeal from Seventeenth Judicial District Court, Parish of Vermillion; Minos Thomas Gordy, Jr., Judge.

Action by the Hunter Canal Company, Limited, against the heirs of John P. Robertson. Judgment for plaintiff, and defendants appeal. Reversed.

Walter Brown Gordy and Foster, Milling, Godchaux & Sanders, for appellants.

William Benjamin White, Edwards & Greene, and Saunders & Gurley, for appellee.

OPINION

PROVOSTY, J.

This suit is upon a contract entered into by the plaintiff with John P. Robertson for the irrigation of the latter's rice crop of the year 1901. John P. Robertson died after the institution, but before the trial, of the suit, and the defendants are his heirs. Defendants deny that plaintiff furnished water in time or in quantity sufficient, and claim damages in reconvention to an amount largely exceeding the amount of rent claimed by plaintiff.

The case was very clearly and very fully argued at the bar, and the five briefs press upon the attention of the court every salient point in the evidence. The court has read every word of the 261 immense, solid pages of the testimony, and the most of it twice, and a great deal of it three and more times, and has digested and classified it, with a view to weighing it; and the result has not been very satisfactory. But the court has risen from that study with the conviction that the plaintiff was remiss in the performance of its contract, and that defendant suffered a great deal thereby. A man hardly cries without he is hurt, and defendant during the season was fairly vociferous. The several rice planters along plaintiff's canal, who were examined as witnesses -- both those who appeared for plaintiff and those who appeared for defendants -- seem to have joined their voices to that of John P. Robertson in a chorus of complaint.

That defendants suffered loss, and very considerable loss, through the delinquency of plaintiff, is indubitable. In fact, plaintiff can deny it only with a very faint voice arguing that inasmuch as Robertson made an average crop upon his land, taken as a whole, therefore there was no injury resulting from the failure to furnish water when the crop was suffering and some of it dying for want of water -- not even from the total or semitotal loss of the crop upon particular parts of the lands. This argument evidently will not hold water.

Every witness, with the exception, perhaps, of one, agrees that the land of Robertson was prepared as well as land can be prepared, and that it was planted with the best of seed, and that a perfect stand was obtained, and that the planting was done rather early than late; and nothing is said about the land not having been good. If, under these circumstances Robertson made more than an average crop upon those parts of the land which were more favored with water, plaintiff certainly cannot avail itself of that to offset Robertson's losses resulting from insufficiency of water upon other parts of the land.

That the water supply was not satisfactory, there can be and is no denial. The excuses of plaintiff are that one of the pumps broke down, and that for three days the water supply failed in the river as an effect of north winds, and that it is too expensive to run the four pumps in the early part of the season. Over the failure of the water supply in the river, plaintiff, as a matter of course, had no control, and is excused for the three or four days of low water; but at the time the one pump was disabled only two pumps were being run, and, of course, the expensiveness of running the four pumps is no excuse.

So far the case offers no difficulty. But when the court comes to ascertaining what Robertson's loss was, the case becomes a maze in which the searcher after a satisfactory solution is well-nigh lost.

With regard to the losses upon all of the crop, except the cuts A E, and F, of the Gueydan plat, the evidence is too vague to serve as a foundation for a judgment. With regard to the loss upon cut A, the testimony fixes it, with as much certainty, perhaps, as is attainable in such cases, at 50 per cent. The court understands the witnesses as estimating the loss at 50 per cent. as a result of the lack of water; that is to say, exclusive of what injury may have been done by insects and grass. The only estimate of the crop actually made on this cut is derived from the testimony of Mr. Hunter, the assistant manager of the plaintiff company, who says that Mr. Robertson estimated the crop after it was on shocks at 6 or 7 or 8 sacks, while he (the witness) estimated it at 8...