McLeod v. Miller & Lux

• Decision Date: 11 December 1915
• Docket Number: 1944,1967.
• Parties: MCLEOD v. MILLER & LUX ET AL.
• Court: Nevada Supreme Court

153 P. 566

40 Nev. 447

MCLEOD v. MILLER & LUX ET AL.

Nos. 1944, 1967.

Supreme Court of Nevada

December 11, 1915

Appeal from District Court, Lyon County; Frank P. Langan, Judge.

Action by Angus McLeod against Miller & Lux, Pacific Live Stock Company, John B. Gallagher, and J. C. Snyder, administrator of the estate of Charles Snyder, deceased. From a judgment for plaintiff, defendants appeal. Reversed.

McCarran J., dissenting.

W. A Massey, of Reno, Edward F. Treadwell, of San Francisco, Cal and Cheney, Downer, Price & Hawkins, of Reno, for appellants.

Mack & Green, of Reno, for respondent. Samuel Belford, of Reno, amicus curiæ.

COLEMAN J.

This is a suit instituted by respondent against appellants to recover judgment for alleged damages in the sum of $48,450, and to obtain a decree of the court abating a certain dam in Walker river, known as the Spragg, Alcorn & Bewley dam, which, it is claimed, is responsible for the overflow of the Walker river, and the consequent damages. From a judgment in favor of plaintiff in the sum of $25,475 damages and a decree directing defendants to reduce the height of the dam, and from an order denying a motion for a new trial, this appeal is taken.

The plaintiff was, at the time the suit was instituted, and for a number of years theretofore, the owner of a ranch of 940 acres, through which the Walker river flows for a distance of over 2 1/2 miles. Defendants own ranches on the river below the ranch of plaintiff. Between the years 1871 and 1873, one Mason, the then owner of the land upon which the dam is situated, and which is now owned by plaintiff, erected, in conjunction with others, at and upon the extreme lower end of what is now plaintiff's ranch, the Spragg, Alcorn & Bewley dam, for the purpose of diverting the water from the river into a ditch for irrigation purposes. Almost a mile above the Spragg, Alcorn & Bewley dam there was erected in 1873 a dam known as the Merritt dam, to be used for the same purpose, which, though washed out in 1883, was rebuilt. Some distance above the Merritt dam, possibly from one-third to one-half mile, is the Perazzo ditch, which takes water from the river, and which, with the consent of plaintiff, was constructed in 1903. There are several other ditches, either on or just above the McLeod ranch, which take water from the river for irrigation. It also appears that the river, as it flowed through the ranch of plaintiff, was very crooked, and the plaintiff made several cuts for the purpose of straightening it. These cuts were through sandy soil, and, as a rule, were only about two feet wide; it being left to the river to wash out so much more of the soil as was necessary to carry the waters of the stream. The upper point of overflow, which is alleged to have caused considerable damage, was over two miles up the river from the Spragg, Alcorn & Bewley dam. The fall in the river is about 1 foot to the 1,000, which would make the bed of the river at the Spragg, Alcorn & Bewley dam, about 10 1/2 feet lower than at the upper point of overflow. Overflows from the river and upon plaintiff's land took place in the years 1862, 1868, 1876, 1881, 1884, 1886, 1890, 1902, 1903, 1904, 1905, 1906, and 1907. This suit is to recover for damage alleged to have been caused by the overflows in the years 1904, 1905, 1906, and 1907.

It is urged by appellants that the case should be reversed for the reason that it appears from the evidence that it was physically impossible for the Spragg, Alcorn & Bewley dam to have so affected the flow of the stream as to have caused the deposit of the silt, which was carried in suspension in the stream, as far up the river as the points of overflow. It is their theory that the dam would not affect the current of the river for a much greater distance than at the point where a horizontal line drawn from the crest of the water at the dam intersects the bed of the river. In other words, it is contended that, since the river has a fall of 1 foot to the 1,000, a dam 1 foot high would affect the flow of the river only for a little more than 1,000 feet up the river from the dam, a dam 2 feet would affect the flow only a little over 2,000 feet up the river from the dam, and so on; and since the Spragg, Alcorn & Bewley dam, prior to 1903, was never more than 4 feet high, and at no subsequent time over 5 feet high, the flow of the stream could by no possibility be influenced above the Merritt dam. This theory not only appeals to the mind of the layman, but appellants called several engineers, all of whom testified that the deposit of silt could not be affected to any appreciable distance above the point of intersection mentioned.

Prof. Thurtell, formerly of the University of Nevada, and some time state engineer, and now chairman of the Fourth Section Board under the Interstate Commerce Commission, after making a survey of the stream, testified that the deposit of silt would not be affected more than 200 feet above said point of intersection.

Mr. Hammond, the expert called in behalf of plaintiff, testified:

"Q. Now, then, assuming that the Spragg, Alcorn & Bewley dam is six feet in height, I am speaking now of the original bed of the river, where would that line, if drawn up the river, meet the original bed of the river? A. Six feet? Q. Six feet in height? A. Six feet in height. Six thousand feet. * * * Q. Assuming that the dam was seven feet in height, how high up would it strike the bed of the river? A. Seven thousand feet, theoretically. Q. If the dam was 7 1/2 feet in height, how high up would it strike the bed of the river? A. Seven thousand five hundred feet."

In opposition to the testimony of defendants' engineers, and the testimony of Mr. Hammond, just quoted, is the testimony of several ranchers who had lived in the community for a number of years. Witness Rallins testified, over the objection and exception of defendants:

"Q. Do you know how the water of the river came to overflow on those places along the ranch as you describe it? A. I do. Q. What was the cause of the overflow on the McLeod place? A. By building up the dam, causing sand and sediment in the river, and causing the river to overflow its banks. Q. What dam do you refer to? A. The Spragg, Alcorn & Bewley dam."

The witness Martin testified, over the objection and exception of defendants:

"Q. What was the cause of the damage to the land? A. Well, the cause was, the river bed was full of sand, and the water had to flow out some place. Q. Do you know the cause of the filling of the river with sand? A. Yes. Q. Now, what was the cause? A. Well, from my experience on that river, I know that dams cause the sand to form in the river. Q. Now, as to the place, the particular place known as the McLeod place, what particular dam do you have reference to as having caused the deposit of sand? A. I have reference to the Spragg, Alcorn & Bewley dam."

The witness Nichol testified, over the objection and exception of defendants:

"Q. Do you know what caused the deposit of sand in the channel of the river above the Spragg, Alcorn & Bewley dam? A. Yes. Q. What was the cause of the deposit of sand in the channel of the river above the dam, and up as far as the ford at the McLeod house? A. The dam, the Spragg, Alcorn & Bewley dam. Q. Do you know what caused the overflow? A. The river not having capacity to carry the water. Q. Why didn't it have the capacity? A. the river filled up with sand."

Plaintiff testified, over objection and exception:

"A. Yes, I testified very fully in regard to the cause, I think. Q. You may state what caused that, if you know of your own knowledge. A. I could give you here a statement as my positive opinion. Q. Well, I don't want any opinion, I want to know what you know. A. Well, I had better not say, I might not know, but I do know that it was caused by this dam in the river, I am positive; I know that it was."

Other witnesses testified to the same effect. It is this line of testimony which counsel for respondent, notwithstanding the admitted facts that the water which overflowed just above the Perazzo ditch went back into the main stream below the Merritt dam and above the Spragg, Alcorn & Bewley dam, and that there was no overflow between the Merritt and the Spragg, Alcorn & Bewley dams, think should be sufficient to establish their case by a preponderance of the evidence.

Counsel for plaintiff call our attention to the case of Hand v. Catawba Power Co., 90 S.C. 267, 73 S.E. 187, in support of their contention that testimony of the ranchers in the neighborhood of the McLeod ranch should outweigh the testimony of the experts called by defendants. While it is undoubtedly the general rule that witnesses must testify as to matters of fact, and leave the conclusion to be drawn by the jury, there are certain exceptions to this rule; and, when it is impossible for a witness to detail all of the pertinent facts in such a manner as to enable the jury to form a conclusion, the witness may give his opinion. The facts in that case no doubt justified the ruling of the court.

"It is not proper to allow one who is not an expert to express an opinion in any case upon a question with relation to which all the facts may be placed before the jury; and to receive as evidence the opinion of a lay witness upon the precise issue submitted for trial in such case would permit the witness to usurp the province of the court or jury trying the cause." Amer. T. & T. Co. v. Green, 164 Ind. 349, 73 N.E. 707.

See also, Loshbaugh v. Birdsell, 90 Ind. 466; Com. v. Sturtivant, 117 Mass. 122, 19 Am. Rep. 401; Balto., etc., Road v. Leonhardt, 66 Md. 70, 5 A. 346; Mann v. State, 23 Fla. 610, 3 So. 207; Stephenson v. State, 110 Ind. 358, 11 N.E. 360, 59 Am. Rep. 216; Shaw v....