Mahaffey v. Carlson

• Decision Date: 27 May 1924
• Citation: 228 P. 793,39 Idaho 162
• Parties: WILLIAM MAHAFFEY, Respondent, v. CHARLES A. CARLSON, STEPHEN A. MAHAFFEY, Jr., WILLIAM CARPENTER, R. E. ELLIOTT and WILLIAM M. BROWN, Appellants
• Court: Idaho Supreme Court

228 P. 793

39 Idaho 162

WILLIAM MAHAFFEY, Respondent, v. CHARLES A. CARLSON, STEPHEN A. MAHAFFEY, Jr., WILLIAM CARPENTER, R. E. ELLIOTT and WILLIAM M. BROWN, Appellants

Supreme Court of Idaho

May 27, 1924

WATERS AND WATER RIGHTS-DITCHES-REPAIR AND MAINTENANCE-FLOODING-INJURY TO CROPS-MEASURE OF DAMAGES-CONFLICTING EVIDENCE.

1. Where the ditches of A. and B. intersect and A. when constructing his ditch eliminated B.'s ditch for the time being and thereafter constructed a flume to take the place of the part of B.'s ditch eliminated, and no agreement is had as to the maintenance and repair of such flume, A. is required, under C. S., secs. 5653 and 5657, to carefully keep and maintain such flume in good repair and condition, and upon failure to do so is liable for any damages that may be occasioned on account of the defective condition of the flume.

2. Evidence examined and held to be sufficient to justify verdict in first cause of action.

3. Where the evidence is conflicting but there is sufficient competent evidence, if uncontradicted, to support the verdict of the jury, the same will not be disturbed by this court.

4. The correct measure of damages for the destruction of a growing crop by flooding is the value of the crop in its condition at the time and place it was destroyed, and, if only injured, is the difference in value before and after the injury.

APPEAL from the District Court of the Sixth Judicial District, for Lemhi County. Hon. Ralph W. Adair, Judge.

Action for damages for failure to properly maintain ditch and for injury and destruction of crops by flooding land. Judgment for plaintiff. Affirmed as to action for failure to maintain ditch. Reversed as to action for injury and destruction of crops and new trial ordered.

Upon the first cause of action the judgment of the lower court affirmed but the judgment upon the second cause of action reversed and remanded. Petition for rehearing denied.

Whitcomb Cowen & Clark, for Appellants.

Plaintiff Mahaffey, when purchasing land and ditch from his predecessor in interest, W. B. Pyeatt, received title thereto subject to the servitude of defendants' ditch, as it then existed and the dominant title of the defendant. (9 R. C. L., pp 795, note 13, 802-806; 9 Cal. Jur. 956, sec. 10; Bennett v. Booth, 70 W.Va. 264, 73 S.E. 909, 39 L. R. A., N. S 618.)

Plaintiff had full knowledge of the existence of the crossing of the respective ditches at the time he purchased from W. B. Pyeatt. (Rollo v. Nelson, 34 Utah 116, 96 P. 263, 26 L. R. A., N. S., 315.)

Plaintiff's complaint contains no allegation to the effect that it was defendants' duty to maintain and keep in proper repair plaintiff's flume and ditch. (City of Bellevue v. Daly, 14 Idaho 545, 125 Am. St. 179, 14 Ann. Cas. 1136, 94 P. 1036, 15 L. R. A., N. S., 992, and note.)

L. E. Glennon, for Respondent.

"An appellate court will not disturb the verdict of the jury or the judgment of the trial court because of conflict in the evidence when there is sufficient proof, if uncontradicted, to sustain it." (Fleming v. Benson, 32 Idaho 104, 178 P. 482; C. S., sec. 7170; Fritcher v. Kelley, 34 Idaho 471, 201 P. 1037; Harvey v. Brett, 36 Idaho 126, 209 P. 209; McKean v. Twin Falls Canal Co., 37 Idaho 241, 215 P. 851.)

"Where a ditch crosses another ditch, the later comer must so construct a crossing that it will not interfere with the prior ditch." (Kinney on Irrigation and Water Rights, sec. 990, p. 1750; Jennison v. Kirk, 98 U.S. 453, 25 L.Ed. 240, 4 Morrison, Min. Rep. 504; Hotchkiss v. Young, 42 Ore. 446, 71 P. 324; C. S., sec. 5653.)

"The ditch owner is in duty bound to keep the ditch or canal in such repair as will prevent unnecessary injury to the land of the owner or to others interested in the land, or in the distribution of the water from the ditch." (Kinney on Irrigation and Water Rights, sec. 993, pp. 1757, 1758.)

The owner of a ditch "is bound to keep it in good repair, so that the water will not break through or overflow its banks, and destroy or damage the lands of other parties." (Richardson v. Kier, 37 Cal. 263, 91 Am. Dec. 681, 4 Morrison, Min. Rep. 612; Board of Regents etc. v. Hutchinson, 46 Ore. 57, 78 P. 1028; C. S., sec. 5657; Hoffman v. Tuolumne etc. Co., 10 Cal. 413; Wolf v. St. Louis etc. Co., 10 Cal. 541, 10 Morrison, Min. Rep. 636; Ware v. Walker, 70 Cal. 591, 12 P. 475; Joseph v. Ager, 108 Cal. 517, 41 P. 422; Hargrave v. Cook, 108 Cal. 72, 41 P. 18, 30 L. R. A. 390.)

BUDGE, J. McCarthy, C. J., and William A. Lee, J., concur.

OPINION

BUDGE, J.

This action was commenced by respondent against appellants to recover damages and for an injunction. The complaint sets forth three separate causes of action. There are, however, but two causes of action involved in this appeal, to which attention will be hereafter called, but no reference will be made to the third cause of action which is for injunctive relief for the reason that the same was abandoned.

From the record it appears that respondent's predecessor in interest constructed a ditch for the purpose of conducting water and through which water was carried from Lemhi River to and upon his land. Thereafter appellants constructed a ditch for the purpose of conducting water and through which water was conducted from Lemhi River to and upon their respective lands, at a point below the intake of respondent's ditch. These two ditches intersected before reaching respondent's premises. During the construction of appellants' ditch at the point of intersection respondent's ditch was eliminated but as soon as appellants' ditch was completed a flume was constructed by appellants across their ditch to carry the water flowing in respondent's ditch, such flume taking the place of the part of respondent's ditch which was eliminated. After the flume was so constructed respondent's predecessor in interest accepted the same in its then condition. Nothing was said at the time of the construction of the flume as to who should have the burden of its upkeep and maintenance. In his first cause of action respondent alleges that on or about May 25, 1920, the ditch belonging to appellants was so badly and negligently constructed and managed and the waters therein so negligently and carelessly handled as to cause the bank of respondent's ditch to give way and so damaged respondent's ditch that the water could not be conveyed through the same, thereby depriving him of the use of the ditch for a considerable period of time and making it necessary for him to go to great trouble and expense in repairing the ditch and in placing the same in condition that it could again be used for the purpose for which it was intended and for which it had theretofore been used. From the record it appears that respondent requested appellants to extend the flume and repair the ditch. This they refused to do, claiming that they owed no duty to respondent to keep the flume in proper repair. Upon his first cause of action respondent sought to recover the sum of $ 100 for damages sustained in this respect. By the verdict of the jury he was awarded damages in the sum of $ 60 for the necessary outlay in the purchasing of material and cost of labor in extending and reconstructing the flume.

In his second cause of action respondent seeks to recover damages sustained by reason of a break in appellants' ditch which resulted in the waters flowing therefrom in and upon his lands and thereby causing damages to a seed pea crop which was then growing upon a portion of his premises. Respondent alleges that appellants negligently allowed an excessive head of water to flow into their ditch and filled the same beyond its carrying capacity and negligently and carelessly permitted the water flowing in their ditch to flow over the banks thereof and on to his land and negligently and carelessly allowed said water to flood his lands upon which his pea crop was then growing, thereby entirely destroying about five acres of his pea crop and so injuring the remainder that the yield therefrom was greatly lessened to his damage in the sum of $ 800. Upon his second cause of action he was awarded a verdict by the jury for the sum of $ 429.16 2/3. From the judgment entered upon the verdict and from an order denying a motion for a new trial this appeal is prosecuted.

Numerous errors are assigned relating to the action of the court in denying the motion for a new trial. The specifications of error are as follows: (1) That the court erred in denying and overruling appellants' motion for a new trial. (2) Excessive damages given under the influence of passion and prejudice. (3) Refusal of the jury to be governed by Instruction No. 10 given by the court. (4) Error of the court in giving Instruction No. 10. (5) Error of the court in giving Instruction No. 15. (6) and (7) Error of the court in refusing to give certain instructions. (8) Insufficiency of the evidence to justify any verdict for damages under the first cause of action. (9) Error of the court in refusing to permit defendants to amend their answer during the trial to conform to the facts. (10) Insufficiency of the evidence to justify a verdict for the plaintiff in the sum of $ 429.16 2/3 upon the second cause of action. (11) Failure of plaintiffs to allege any duty of defendants to maintain and keep in proper repair plaintiff's flume...