Johnson v. Twin Falls Canal Company

• Decision Date: 23 February 1946
• Docket Number: 7209
• Citation: 66 Idaho 660,167 P.2d 834
• Parties: HAROLD H. JOHNSON, NORTH AMERICAN COMPANY, a Montana corporation, GEORGE HERBERT JOHNSON and MARTHA ELMINA JOHNSON, husband and wife, Plaintiffs-Respondents, v. TWIN FALLS CANAL COMPANY, a corporation, Defendant-Appellant
• Court: Idaho Supreme Court

167 P.2d 834

66 Idaho 660

HAROLD H. JOHNSON, NORTH AMERICAN COMPANY, a Montana corporation, GEORGE HERBERT JOHNSON and MARTHA ELMINA JOHNSON, husband and wife, Plaintiffs-Respondents, v. TWIN FALLS CANAL COMPANY, a corporation, Defendant-Appellant

No. 7209

Supreme Court of Idaho

February 23, 1946

Rehearing denied April 22, 1946.

1. Waters and water courses

In suit to enjoin canal company from so operating dam and lake as to cause injury to plaintiffs' realty, where it was established that canal company was wholly burdened with and had exclusive control, management, and operation of dam and lake, court properly refused canal company's motion to bring in additional defendant even though such additional defendant had a property interest in dam and lake.

2. Release

In a release contained in a deed giving canal company right to flood land and discharging company from all liability on account of such flooding, the general language will not be construed as including a particular injury then unknown to both parties of a character so serious as clearly to indicate that, if it had been known, the release would not have been signed.

3. Release

Release contained in deed giving canal company right to flood land and which absolved canal company of all liability for flooding of any portion of land by the operation of a dam by canal company, operated as a complete release only as to claims that had arisen to date thereof and did not discharge subsequently maturing demands, not in the minds of the parties nor contemplated, unless expressly embraced within terms of instrument, and hence did not release canal company for damages to land caused by erosion and destruction thereof, which parties did not contemplate.

4. Waters and water courses

A grant of right to flood land did not carry with it the right to erode and destroy such land.

5. Release

Where release contained in deed by which former owner conveyed to canal company right to flood land made no mention of future damages, release was not binding upon subsequent owners of land.

6. Release

Where former owner of land granted canal company right to flood land in connection with the operation of a dam and granted a release, such release could not be construed to cover damages caused by water in lake due to construction of a dam, not in contemplation of the parties or to be anticipated, because parties were ignorant of fact that additional projects would be enlarged or constructed.

7. Waters and water courses

The right to flood another's land acquired by prescription is coextensive with the extent to which right has been enjoyed during period of prescription, so that manner and extent of use during prescriptive period, with reference to head of water maintained and other circumstances, limit extent to which privileges available after right has fully vested.

8. Waters and water courses

Where defendant's prescriptive right, if any, to flood plaintiffs' lands, contemplated a water level of eight and a fraction feet, such prescriptive right did not give defendant right to increase water level to eleven and a fraction feet, thereby causing water to overflow additional land and to erode and wash away thereby destroying plaintiffs' land.

9. Injunction

Where injury caused is irreparable and destroys the inheritance and will continue by recurrence, relief by permanent injunction will be granted.

10. Waters and water courses

Where evidence established that defendant in operation of dam increased the head of water, thereby causing added flooding of plaintiffs' lands in seasonal recurrences and irreparable damage as the result of erosion of such land plaintiffs were entitled to injunctive relief.

11. Limitation of actions

Where plaintiffs' cause of action against canal company was based upon a periodic washing away, eroding and permanent destroying of plaintiffs' land by seasonal rise and fall of water level back of defendant's dam and permission to flood land did not include permission to erode, each progressive annual intermittent destruction of land constituted an independent cause of action for purpose of limitation statutes. (I.C.A., sec. 5-218, subd. 2; sec. 5-224.)

Rehearing Denied April 22, 1946.

Appeal from the District Court of the Eleventh Judicial District for Cassia County. Hon. T. Bailey Lee, Judge.

Affirmed.

James R. Bothwell for appellant.

The Starrh deed, defendant's exhibit "2", is controlling and defendant, as successor in interest of Twin Falls Land and Water Company, a corporation, grantee, has acquired the legal right to flow the lands in question by the waters of Milner Lake. (State, et al, v. Twin Falls Canal Co., et al, 21 Ida. 410, 121 P. 1039, 67 Corpus Juris, 718-719, sec. 49; Virginian Ry. Co. v. Hood, 146 S.E. 284; Sweetland v. Grants Pass, etc. (Ore.), 79 P. 337; Wright, et al, v. Shindler, (Ore.), 21 P. 195; Schlag v. Gooding-Coxe Co., 108 N.W. 11.)

The causes of action for damages and injunction, as alleged by plaintiffs, if they exist at all, accrued when the dam was constructed and placed in operation, and are now barred by the statute of limitations. (Section 5-218, par. 2, I.C.A.; Section 5-224, I.C.A., 67 Corpus Juris 729, 37 Corpus Juris 894, par. 257, 17 R.C.L. 789, par. 156; Irvine v. City of Oelwein (Iowa), 150 N.W. 678, L.R.A. 1916E, 990, annotation p. 997; Boise Development Co. v. Boise City, 30 Ida. 675, 167 P. 1032; Rogers v. Oregon-Wash. R. & Nav. Co., 28 Ida. 609, 156 P. 98.)

Defendant has acquired a prescriptive right to maintain and operate the dam as it has been maintained and operated since its construction, which includes the right of flowage of the lands in question, and plaintiffs are estopped from maintaining an action for injunction. (67 Corpus Juris 716; 61 Corpus Juris 922; Kinney on Irrigation, Vol. 3, sec. 1617; 67 Corpus Juris 731.)

Chapman & Chapman for respondents.

The injury to respondents' land goes to the destruction of the inheritance, and is irreparable, and will be enjoined as a trespass. (32 C.J. 137-8, Sec. 182; 32 C.J. 51, Sec. 30; 32 C.J. 54, Sec. 32; Slater v. Pac. American Oil Co., 212 Cal. 648, 300 P. 31.)

The release provision in the Starrh deed is in broad, general language, and cannot be construed to cover the damage caused by appellant company to lands of respondents, for that purpose was not in contemplation of the parties when the Starrh deed was executed. (The Ross-Coddingham (D.C.N.Y.), 40 F.2d 280; Darby Petroleum Co. v. Mason (Okla.), 54 P.2d 1046; Lane v. Wentworth (Ore.), 138 P. 468; Great Northern Ry. Co. v. Reid (C. C. A. 9th), 245 F. 86; Seaver v. Snyder (Colo.), 122 P. 402; Darby Petroleum Co. v. Bowers (Okla.), 91 P.2d 663; Parish v. Page, 50 Ida. 87, 293 P. 979; 53 C.J. 1268-69, Sec. 85; 23 R.C.L. 387, Sec. 17.)

The Starrh deed release made no mention about future damages, and for that reason it is not binding upon the respondents. (53 C.J. 1269-70, Sec. 86; 12 Am. Jur. 83; Darby Petroleum Corp. v. Mason (Cal.), 54 P.2d 1046; Ramey v. Baltimore & O. S.W. R. Co., 235 Ill. 502, 85 N.E. 639.)

The Starrh deed general release clause must be read, construed, and given the same effect that would be given a judgment in a condemnation proceeding, and no further, and would therefore not cover the damages suffered by respondents at the hands of appellant. (Fremont etc., v. Harlin (Neb.), 36 L.R.A. 417; White v. So. R. Co. (S.C.), 140 S.E. 560, 57 A.L.R. 634.)

Where a deed contains a release provision, and the releasee is guilty of negligence, an action for damages will lie. (Fremont, etc., v. Harlin, supra; Dick v. City of Los Angeles (Cal.), 168 P. 703; Hood v. City of Nashua (N.H.), 13 A.2d 726.)

Budge, J. Ailshie, C.J., and Holden and Miller, JJ., concur. Givens, J., concur.

OPINION

Budge, J.

This is an action in which respondents seek to enjoin appellant from so operating Milner Dam and Milner Lake in the diversion of water from Snake River thereby causing injury to and ultimate destruction of lands of respondents described in the amended complaint. Appellant demurred to said complaint, which was overruled, whereupon appellant answered setting up numerous affirmative defenses, to which reference will be made later.

North American Company, a corporation, one of the parties respondent, is the owner and holder of the legal title to the land involved herein, which land borders on the south side of Milner Lake, that respondent, Harold H. Johnson, had a contract with said corporation to purchase said land, but subsequently, by contract, George Herbert Johnson and Martha Elmina Johnson, husband and wife, and parents of Harold H. Johnson, became the equitable owners of the land.

It is alleged in the amended complaint that Twin Falls Canal Company is the owner of an undivided 6/11ths interest in Milner Dam, wholly burdened with and has the exclusive control, management and operation of said dam; that the dam is used as a diversion dam from which the irrigation waters of appellant and other irrigation units are drawn for delivery to ultimate users; that Milner Lake is formed by waters impounded above the dam; that by reason of the manner of operation and use of Milner Dam the water level of the lake from April to November is higher than for the remainder of the year; that during the irrigation season of 1936 namely, April to November, by reason of the operation and use of Milner Dam, the waters of Milner Lake were raised, and washed upon and over and eroded and washed away the northermost portion of respondents' real estate bordering upon and constituting the shore line of Milner Lake, approximately two acres of said real estate; that by reason of and as a direct result of the operation and use of Milner Dam and Milner Lake by appellant, the real...