McHale v. Goshen Ditch Co.

• Decision Date: 17 December 1935
• Docket Number: 1906
• Citation: 49 Wyo. 100,52 P.2d 678
• Parties: McHALE v. GOSHEN DITCH COMPANY
• Court: Wyoming Supreme Court

52 P.2d 678

49 Wyo. 100

McHALE v. GOSHEN DITCH COMPANY

No. 1906

Supreme Court of Wyoming

December 17, 1935

APPEAL from the District Court, Goshen County; C. O. BROWN, Judge.

Action by Mattie A. McHale against the Goshen Ditch Company, wherein defendant filed a counterclaim. Judgment for defendant, and plaintiff appeals.

Affirmed in part, reversed in part, and remanded with directions.

For the appellant there was a brief and an oral argument by Edward T Lazear, of Cheyenne.

Appellant paid all assessments and was entitled to the delivery of water, but no water was supplied during the year 1926 to 1929, inclusive, and plaintiff was justified in not making further payments. Restatement of the Law of Contracts American Law Institute, pp. 391, 392, 396, 399, 402, 409 and 415; Irrigation Company v. La Porte, 26 Wyo. 257; Bench Canal Company v. Sullivan, 39 Wyoming 352. The defendant's cross-petition is insufficient as a basis of an action to foreclose a lien or to support the judgment rendered below, for the reason that its default in the performance of material obligations is admitted. For example it is alleged that when plaintiff took possession, the ditches, laterals and irrigation system were in proper condition for the delivery of water in accordance with the contract, while at another place it is alleged that defendant was always ready, willing and able to perform its contract by placing its ditches in condition to deliver water. The failure of one party to perform discharges the other, and one cannot maintain an action against the other without showing performance. 13 C. J., pp. 627 to 693. The trial court was not justified under the pleadings and evidence in ordering that the plaintiff's lands should be sold under foreclosure.

For the defendant and respondent there was a brief by Reid & More, of Torrington, and an oral argument by Erle Reid.

Plaintiff and her predecessor in interest, beginning with the season of 1926, have been in default and were never at any time entitled to the delivery of water. The trial court in finding against the plaintiff and in favor of the defendant must necessarily have decided that conflict and must have found that irrigation was furnished during the year 1925. A general finding upon conflicting evidence will not be disturbed on appeal. King v. Company, (Wyo.) 28 P.2d 492; Tobin v. Sundance, 17 P.2d 666; Bank v. Ennis, 14 P.2d 201; Finance Corporation v. Commercial Credit Company, 283 P. 1100; Gould v. James, 299 P. 275; 4 C. J. 772. Plaintiff was guilty of laches. Stuart v. Ditch Company, 76 P. 255. Plaintiff's evidence with reference to damages was insufficient. Defendant's cross-petition stated a cause of action which was not questioned by plaintiff by motion or demurrer. And questions not raised in the trial court will not ordinarily be considered on review. Ideal Bakery v. Schryver, (Wyo.) 299 P. 284; 3 C. J. 782, 784. It has been contended by plaintiff that the allegations of defendant's counterclaim are inconsistent. We believe a careful examination of the pleading will show that it is consistent in allegations of fact.

BLUME, Justice. KIMBALL, Ch. J., and RINER, J., concur.

OPINION

BLUME, Justice.

This is an action brought by the plaintiff Mattie A. McHale against the Goshen Ditch Company for damages for failure to furnish the plaintiff irrigation water during 1928 to 1932 inclusive. The Ditch Company denied the right of plaintiff to damages and also filed a counterclaim for assessments due from plaintiff, and from her land, for maintenance charges. The court found against plaintiff on her demand, and found in favor of defendant on its counterclaim in the sum of $ 349.50, declared this amount to be a lien against plaintiff's land, and ordered that it be sold to satisfy the amount due. From this judgment the plaintiff has appealed. The facts, in brief, are as follows:

The defendant is a ditch company. Judging from the record, its capital stock is all owned by farmers owning land under the line of its ditch and receiving water therefrom. On November 26, 1929, it was sold to Sarah A. Lacy, predecessor in interest of the plaintiff, a perpetual water right and ditch right to irrigate approximately 45 acres of the south half of the southeast quarter of Sec. 33, T. 23 N., R. 62 W. of the Sixth P. M. The purchaser under the contract, and her heirs and assigns, agreed to pay the proportionate part of maintaining the irrigation works of defendant; that the amount thereof should be a prior lien on the land, which might be foreclosed to enforce the amount due, and that the ditch company "may also shut off and cease the supply of water from all of said lands until the amounts due and owing for the said pro-rate shares shall have been fully paid." Later, in 1924 and 1925, defendant issued to plaintiff's predecessor in interest certificates for shares of the capital stock of the ditch company, one for 39 shares, and one for 45 shares, the certificates containing the following clause: "The shares represented by this certificate are assessable by a vote of the shareholders or by a vote of the board of directors of the company when authorized by the stockholders for their proportionate part of the costs of operating the company's business and maintaining and operating the company's ditches and reservoirs and storage works and their proportionate part of the construction of any betterments undertaken by the company, provided that no assessments shall be due until at least ten days after it is levied and that no stock shall be entitled to its storage and delivery privileges against which there is levied and outstanding and unpaid any assessment."

The ditch of defendant, to reach plaintiff's land, comes from the south. While the written records do not show where the water was to be delivered to the latter's land, it seems clear that defendant's ditch was intended to be built substantially up to plaintiff's land, the ditch running in a semi-circle, bent westward for about a mile before reaching the land. This part of the ditch was not, until 1932, in condition to carry much water. Some of the witnesses testified that it ran up-hill part of the way. In any event the witnesses are agreed that it was not in good condition to carry water of any substantial amount. During 1924 and 1925 the land was irrigated by carrying water through a neighbor's ditch, and thence through a private ditch, constructed by plaintiff's predecessor in interest. But this method was cut off during 1926 by a railroad track, extended to Yoder during that year. The land was not irrigated during that year, nor in any subsequent year up to the commencement of this suit. Assessments for maintaining defendant's irrigation works were made against plaintiff's land each year. Those made up to and including the year 1925 were paid. An assessment of $ 33.60 was made in April, 1926; an assessment of $ 63.00 in February, 1927; an extra assessment, for special work, in June, 1927, in the amount of $ 196.56. Assessments were also made during 1928 and 1932 both inclusive. The time when they were made does not appear, but if we may credit counsel's statement on the oral argument, they were made early in each year before the irrigation season started. They were due ten days after they were made. None of these assessments made since 1926 have been paid. Plaintiff bought the land and the stock issued to Mrs. Lacey in December, 1927, and attempted to get the ditch company to deliver water for the land during 1928. But he did not succeed. The defendant asked that the delinquent assessments for 1926 and 1927 be paid. Plaintiff refused to pay them. Efforts to settle the controversy were made by the parties from time to time, but were not effectual. Some other facts will be stated hereafter. The parties will be referred to as in the court below.

1. We shall first consider the counterclaim of the ditch company. As stated, no water was delivered to Mrs. Lacey, then owner of the land, during 1926 and 1927, but assessments were made against her and her land. It is the non-payment of these which lies at the basis of the trouble between the parties. Plaintiff claims that inasmuch as the ditch company was unable to deliver any water, due to the fact that the ditch was never constructed so as to be able to do so, no assessments for these years can be collected. The ditch company counters by saying that no demand for the delivery of water during these years was ever made. It is doubtful that a mere demand would have been anything more than an idle ceremony in the face of the conceded fact that the ditch was not in proper condition. Allen v. Land Co., 25 Cal.App. 206, 143 P. 253. There are cases which hold that a lack of demand will relieve the ditch company from damages for not delivering water. 67 C. J. 1392. These cases are based on a statute or a contract requiring such demand. They deal with a situation entirely different from that here. In them the water user sought to hold the ditch company liable for damages for non-delivery of water, though no demand therefor was made, and not with a situation like that at bar where the ditch company is seeking to recover from the water user for assessments without giving anything in return. Neither our statute, nor the contract in the case at bar, makes a demand a requisite for the right to have the water delivered. It may be that even in the absence of a statute or contract, a water user, in order to recover damages for non-delivery of water, should, in view of the fact that there is no definite time when water is to be delivered, be required to first make a demand. But we have no such case here. We have here a reciprocal agreement, on which the defendant seeks to recover without performance on its part...