Meservy v. Idaho Irrigation Co., Ltd.

• Decision Date: 28 May 1923
• Citation: 37 Idaho 227,217 P. 595
• Parties: L. J. MESERVY, Respondent, v. IDAHO IRRIGATION COMPANY, LTD., a Corporation, and BIG WOOD RIVER RESERVOIR AND CANAL CO., LTD., a Corporation, Appellants
• Court: Idaho Supreme Court

217 P. 595

37 Idaho 227

L. J. MESERVY, Respondent, v. IDAHO IRRIGATION COMPANY, LTD., a Corporation, and BIG WOOD RIVER RESERVOIR AND CANAL CO., LTD., a Corporation, Appellants

Supreme Court of Idaho

May 28, 1923

MOTION FOR NONSUIT-REOPENING CASE-CONTINUANCE-DISCRETION OF COURT-PLEADING-DEFENSE OF SHORTAGE OF WATER-FAILURE OF WATER USERS TO APPOINT WATER-MASTER NO DEFENSE FOR FAILURE TO FURNISH WATER-INSTRUCTIONS.

1. Where a motion for nonsuit has been argued and submitted, and plaintiff thereupon asks permission to reopen his case to introduce further testimony, some of which is intended to obviate a ground stated in the motion, the propriety of granting such application rests in the sound discretion of the court.

2. Held, that there was no abuse of discretion on the part of the trial court in denying appellant's application for a continuance.

3. In an action for damages against an irrigation company for failure to furnish water, where the complaint alleged that the company had an ample supply of water available for distribution during the 1919 season, which was denied by the answer, the alleged failure of the water supply on account of drouth was a matter of defense to be shown by the company.

4. Failure of water users to appoint a water-master for a community ditch is not a good defense for a corporation that is bound by contract to furnish water for irrigation, if it fails to furnish the amount of water for which it is bound.

5. Held, that the trial court committed no error in giving and refusing to give certain instructions.

APPEAL from the District Court of the Fourth Judicial District, for Blaine County. Hon. H. F. Ensign, Judge.

Action for damages for failure to furnish water for irrigation. Judgment for plaintiff. Affirmed.

Affirmed. Petition for rehearing denied.

Walters Parry & Bailey, for Appellant.

The only duty of company operating canal system was to deliver water available, without negligence. (Gerber v. Nampa &amp Meridian Irr. Dist., 16 Idaho 1, 100 P. 80; Berg v Yakima Val. Canal Co., 83 Wash. 451, 145 P. 619, L. R. A. 1916D, 292; Young v. Extension Ditch Co., 28 Idaho 775, 156 P. 917; Jackson v. Indian Creek etc. Co., 16 Idaho 430, 101 P. 814; Stuart v. Davis, 25 Colo. App. 568, 139 P. 577; McNair v. Imperial Water Co., 156 Cal. 31, 103 P. 229; Booth v. Chapman, 59 Cal. 149; San Joaquin & King River etc. Co. v. Stanislaus County, 191 F. 875, at 897; Imperial Water Co. No. 5 v. Hollabird, 197 F. 4, 116 P. 526; O'Connor v. North Truckee Ditch Co., 17 Nev. 245, 30 P. 882; Rocky Ford Canal etc. Co. v. Simpson, 5 Colo. App. 30, 36 P. 638; Mountain Supply Ditch Co. v. Lindekugel, 24 Colo. App. 100, 131 P. 789.)

Testimony introduced showing how system was handled in 1920, the succeeding year, was highly prejudicial. (20 R. C. L. 180; Columbia etc. R. R. Co. v. Hawthorne, 144 U.S. 202, 12 S.Ct. 591, 36 L.Ed. 405, at 406; Fitter v. Iowa Tel. Co., 129 Iowa 610, 106 N.W. 7; Stewart & Co. v. Harman, 108 Md. 446, 70 A. 333, 20 L. R. A., N. S., 228.)

Bothwell & Chapman, for Respondent.

"Propriety of permitting a party to reopen his case rests in the sound discretion of the trial court." (Kinzell v. Chicago, M. & St. P. Ry. Co., 33 Idaho 1, 190 P. 255; Pelikan v. Ridpath, 8 Idaho 617, 71 P. 125; Hall v. Jensen, 14 Idaho 165, 93 P. 962; Union Sav. Bldg. & Trust Co. v. McClain, 23 Idaho 325, 130 P. 84.)

"A motion for a continuance is addressed to the sound legal discretion of the trial judge." (Herron v. Jury, 1 Idaho 174; Cox v. Northwestern Stage Co., 1 Idaho 376; Holt v. Gridley, 7 Idaho 416, 63 P. 188; Reynolds v. Corbus, 7 Idaho 481, 63 P. 884; Richardson v. Ruddy, 10 Idaho 151, 77 P. 972; Storer v. Heitfeld, 17 Idaho 113, 105 P. 55; De Puy v. Peebles, 24 Idaho 550, 135 P. 264.)

"A party is not entitled to a continuance on account of the absence of a witness, without showing due diligence and the use of legal means to secure the attendance of such witnesses." (Franklin v. Caldwell, 15 Idaho 625, 99 P. 108; Walsh v. Winston Bros. Co., 18 Idaho 768, 111 P. 1090.)

"Newly discovered evidence, merely cumulative or only tending to contradict or to discredit a party or opposing witness, is no ground for a continuance." (Phoenix Ins. Co. v. Wintersmith, 30 Ky. Law, 369, 98 S.W. 987; St. Louis & San Francisco R. R. Co. v. Long, 41 Okla. 177, Ann. Cas. 1915C, 432, 137 P. 1156; M. K. & T. Ry. Co. v. Horton, 20 Okla. 815, 119 P. 233; Collins v. Weiss, 32 Tex. Civ. 282, 74 S.W. 46.)

"An action will lie for damages to crops under a Carey Act contract during the years in which the construction company retains control of the operating company, where the construction company has bound itself during such years to deliver water in such quantity as the condition of the crops and the weather shall determine." (Tapper v. Idaho Irr. Co., 36 Idaho 78, 210 P. 591; Hanes v. Idaho Irr. Co., Ltd., 21 Idaho 512, 122 P. 859; State v. Twin Falls Salmon River Land & Water Co., 30 Idaho 77, 166 P. 232; Childs v. Neitzel, 26 Idaho 116, 141 P. 77; Caldwell v. Twin Falls Salmon River Land & Water Co., 225 F. 591, 242 F. 177.)

"The appellants made a prima facie case by proving the contract and failure to deliver water in accordance with its terms and consequent damages to their crops, together with the amount thereof. It was incumbent upon respondent to prove the failure of the water supply on account of an extraordinary drouth, and also that it delivered to appellants their just proportion of the water supply which it had." (Tapper v. Idaho Irr. Co., Ltd., supra.)

The court did not err in refusing to give appellant's requested instruction which would have tended to emphasize the testimony of one witness as to the delivery of water to respondent; and, for the further reason that it assumes a shortage of water when there is no evidence tending to show such fact. (38 Cyc. 1680; Chappelle v. Roberts, 150 Ala. 457, 43 So. 489; Huff v. St. Joseph R. R. etc. Co., 213 Mo. 495, 111 S.W. 1145.)

FLYNN, Commissioner. Budge, C. J., and Dunn and Wm. E. Lee, JJ., concur.

OPINION

FLYNN, Commissioner.

In this action respondent seeks damages sustained by reason of the wilful failure and negligence of the appellant, a Carey Act construction company, to furnish him his pro rata share of its available water supply for irrigation during the 1919 season.

On application for change of venue, the case was transferred from Lincoln county to Blaine county. The appellant is the same defendant appearing in the case of Tapper v. Idaho Irrigation Co., Ltd., 36 Idaho 78, 210 P. 591, and the various contracts involved and discussed in that case are identical with the contracts herein involved in so far as they are material to the issues, and, for that reason, need not again be set forth.

The respondent alleged in his complaint the existence of certain contracts between appellant and the state of Idaho under and by which a large irrigation project was constructed by appellant in the counties of Blaine, Lincoln and Gooding of this state; that respondent's predecessors in interest entered into an entryman's contract with the appellant; that during the year 1919 respondent was engaged in farming the premises covered by said contract; that appellant was in control of the corporation which operated the system during 1919; that appellant had an ample supply of water available for distribution, but that it failed, neglected and refused to deliver to respondent a sufficient amount of said supply of water to allow him to successfully mature his crops; and that, by reason thereof, he was damaged in the sum of $ 3,628.22.

Appellant denied these allegations and also set up the affirmative defenses that the year 1919 was a year of extraordinary drouth on the project of appellant; that respondent's damages, if any, were caused by his own neglect, and that he was estopped from maintaining this action for the reason that he had failed to comply with the provisions of sec. 5632 of the Compiled Statutes.

The jury returned a verdict for $ 1,547.96.

Both parties agree that the question of shortage of water, due to the alleged extraordinary drouth, is eliminated from the case.

Before going to the merits, we shall consider several errors assigned as to the conduct of the trial.

After a motion for nonsuit was argued and submitted, respondent asked to reopen his case to introduce further testimony, some of which was intended to obviate one of the grounds stated in the motion for nonsuit, which application was granted over appellant's objection.

The propriety of permitting respondent to reopen his case rests in the sound discretion of the court, and there appears to have been in this case no abuse of that discretion. (Kinzell v. Chicago, M. & St. P. Ry. Co., 33 Idaho 1, 190 P. 255.)

Appellant then moved for a continuance. Its affidavit therefor states that on the reopening of the case, respondent was permitted to testify as to a conversation with one Walker, an employee of appellant, and also as to a letter respondent sent to M. R. Kays, a general manager of appellant, the legal effect of said conversation and letter being to establish a waiver by appellant of the provisions of sec. 5632 of the Compiled Statutes, which was an unexpected issue and not pleaded; that Walker was now at Aberdeen, Idaho, and Kays was at Phoenix, Arizona, and that neither of them was now employed by appellant; that appellant needed a continuance to ascertain from said absent witnesses, or others, the facts relating to the testimony of respondent as to waiver. Walker was the chief engineer of the appellant and had charge of the distribution of the water under appellant's system during the year 1919. The contents or substance of the letter to Kays...