Louth v. Kaser

• Decision Date: 31 August 1965
• Docket Number: No. 3401,3401
• Parties: William LOUTH and George Louth, Administrators of the Estate of Charles Louth, Deceased, Appellants (Charles Louth, Deceased, defendants below), v. C. E. KASER and Clifford G. Kaser, Appellees (Plaintiffs below), and E. G. SANDERS, Appellee (Third-Party defendant below).
• Court: Wyoming Supreme Court

Page 276

405 P.2d 276

William LOUTH and George Louth, Administrators of the Estate of Charles Louth, Deceased, Appellants (Charles Louth, Deceased, defendants below), v. C. E. KASER and Clifford G. Kaser, Appellees (Plaintiffs below), and E. G. SANDERS, Appellee (Third-Party defendant below).

No. 3401.

Supreme Court of Wyoming.

Aug. 31, 1965.

James A. Greenwood, Cheyenne, and Pence & Millett and Alfred M. Pence, Laramie, for appellants.

Henderson, Godfrey, Kline & Uchner and Paul B. Godfrey, Cheyenne, for appellees.

Before PARKER, C. J., and HARNSBERGER, GRAY, and McINTYRE, JJ.

Mr. Justice HARNSBERGER delivered the opinion of the court.

Although this litigation was commenced on November 14, 1958, as an action by plaintiff C. E. Kaser to restrain defendant Charles Louth from interfering with Kaser's maintenance, operation, repair, construction, cleaning out, and use of John Gilland Ditch and its headgate which were located upon and across Louth's lands, that phase of the action was concluded by an agreement and stipulation of the parties approved and adopted by the district court's judgment dated March 24, 1960, in which it was decreed that Kaser was authorized to enter upon defendant's lands for the purpose of repairing and constructing, under supervision of a former state engineer of Wyoming, the original John Gilland Ditch line and which authorized and directed plaintiff Kaser to maintain the John Gilland Ditch across the lands of Louth including the headgate and measuring weir in a proper state of repair so as to permit adjacent use thereof in a manner not to interfere with Louth's proper use of his lands adjacent to the John Gilland Ditch and permit Kaser's entry upon Louth's lands for those purposes only.

That portion of the judgment and decree was not appealed.

However, prior to the entry of this judgment and decree, the court had permitted Louth to amend his answer to Kaser's complaint by pleading that the John Gilland Ditch had never conveyed from Lodge Pole Creek, from which Kaser had a water right for 3.50 cfs of water for irrigation of 245 acres of land, water in excess of 1.50 cfs; that 97 acres of the Kaser lands for which his appropriation was adjudicated had never been irrigated by diversion of water from Lodge Pole Creek through the John Gilland Ditch; that the adjudicated water right had been abandoned for more than 50 years to the extent of 97 acres; that not in excess of 148 acres of Kaser's lands had ever been irrigated under the John Gilland Ditch water right; that for more than five years Kaser had not diverted any water from Lodge Pole Creek under the John Gilland Ditch appropriation and applied it to beneficial use upon any land; and that the John Gilland water right had been abandoned since 1952.

Notwithstanding the amendment was permitted, the district court refused to hear any evidence upon the matter of alleged abandonment. Upon appeal to this court because of this denial we held this exclusion of evidence was error and remanded the case for new trial. See Louth v. Kaser, Wyo., 364 P.2d 96.

Following the remand, additional parties were added and additional pleadings were filed in which Louth claimed damages for injury to his lands due to activities of Kaser and his agents, and Kaser counter-claimed for damages for interference with his entry upon Louth's lands to service the John Gilland Ditch. The entire cause was then tried to a jury.

By a pretrial order it was ruled, without objection from any party, that such pretrial order superseded all pleadings and should govern the course of the trial. That order also ruled as a matter of law that plaintiff Kaser had a right of way across Louth's lands for an irrigation ditch of sufficient capacity to carry the amount of water to which Kaser was entitled under the original appropriation. Among the issues of fact to be submitted to the jury under the pretrial order was the question of what were Louth's damages resulting from activities of the plaintiff C. E. Kaser after May 1, 1957, or of plaintiff-Kaser's agents after March 1, 1958, including damages for severance and inconvenience.

Upon the remand ordered by this court, and under the terms of the pretrial order, the cause was tried to a jury which returned its special verdict that the number of acres of Kaser's lands to which water had been beneficially applied was 147.51 acres; a general verdict in favor of Louth and against both the original plaintiff C. E Kaser and interpleaded plaintiff Clifford G. Kaser, fixing Louth's damages at $600, and a further general verdict in favor of Louth and against the two Kasers on their counterclaim against Louth. The court entered its judgment according to these verdicts, and Louth moved for a new trial, alleging there was error in the assessment of the amount of his damage. The motion was denied and Louth has appealed to this court insisting the amount of the $600 award to him was erroneous in the light of the jury's general verdict finding in his favor and against the Kasers, and Louth asks this court to increase the amount of his damage award to the sum of $10,820, to conform to what appellant claims is the undisputed evidence.

Appellant contends that under previous holding of this court we must assume the evidence in favor of Louth is true, leaving out of consideration entirely the evidence of the Kasers in conflict therewith and give Louth's evidence every favorable inference which may be reasonably and fairly drawn, referring us to Willis v. Willis, 48 Wyo. 403, 49 P.2d 670, rehearing denied 49 Wyo. 296, 54 P.2d 814. But appellant mistakes Louth's position in this appeal. Here Louth in this appeal is asking this court for additur, the effect of which is to contend the award of $600 to Louth was adverse to his entitlement. This places Louth in the position of a defeated and unsuccessful party. Therefore, we must consider only the evidence most favorable to the Kasers in passing upon the correctness of the jury's verdict and the court's judgment.

The unappealed portion of the district court's March 24, 1960, judgment and the unassailed pretrial ruling and order that C. E. Kaser has a right of way across Louth's lands for an irrigation ditch of sufficient capacity to carry the amount of water to which C. E. Kaser was entitled, coupled with the failure of Louth to successfully attack that right and later to at least tacitly admit C. E. Kaser had such a right of way, left Louth without any standing to claim damages or compensation for C. E. Kaser's taking or using the lands embodied in that right of way. Although by one of its instructions the trial court told the jury it might compensate Louth for damages actually resulting to him from activities of both Kasers and their agents on Louth's lands, between certain dates, 'including severance damages, damages for inconvenience and the value of the land contained in Plaintiff's [Kaser's] ditch right of way,' (emphasis supplied) the emphasized portion noted was erroneous as compensation for the value of the land taken by the right of way was not within the issues presented pursuant to the pretrial order and there could have been awarded no compensation for either Kaser's taking of that which C. E. Kaser already possessed.

The appellant...