Morton Realty Co., Ltd. v. Big Bend Irrigation & M. Co.

• Decision Date: 31 May 1923
• Citation: 37 Idaho 311,218 P. 433
• Parties: MORTON REALTY COMPANY, LTD., a Corporation, Appellant, v. BIG BEND IRRIGATION & M. CO., a Corporation, Respondent
• Court: Idaho Supreme Court

218 P. 433

37 Idaho 311

MORTON REALTY COMPANY, LTD., a Corporation, Appellant, v. BIG BEND IRRIGATION & M. CO., a Corporation, Respondent

Supreme Court of Idaho

May 31, 1923

APPEAL AND ERROR-BRIEFS-ENUMERATION OF ERRORS-TRIAL-FAILURE TO RULE ON OBJECTIONS-COURTS-RULES OF COURT.

1. An assignment of errors in a brief on appeal that "the findings of fact, conclusions of law and decree are contrary to the law and the evidence" does not comply with supreme court rule 42, requiring the brief of appellant to "contain a distinct enumeration of the several errors relied on," and therefore will not entitle appellant to a review of the questions attempted to be raised by such assignment.

2. For the purpose of expediting and facilitating its business, the supreme court has the power to make and enforce reasonable rules imposing requirements for the presentation of questions for review in addition to those prescribed in C. S., sec 6886, which provides that the reporter's transcript duly settled shall be deemed adequate to present for review any ruling appearing therein to have been duly excepted to.

3. The party objecting to the introduction of evidence is entitled to a ruling from the court which should go into the record.

4. Where it does not appear that the trial court relied on incompetent testimony in arriving at its decree, the decree will not be reversed because of the admission of such testimony.

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

Action to recover portion of cost of building a dam. Judgment for defendant. Affirmed.

Judgment affirmed, with costs to respondent. Petition for rehearing denied.

Bissell & Bird, for Appellant.

Parol evidence is not admissible to vary, add to or modify the terms of written instruments by showing the intentions of the contracting parties; neither are witnesses allowed to analyze written instruments, that being for the court. (22 C. J 1098; Hurt v. Monumental Mercury Mining Co., 35 Idaho 295, 206 P. 184-186.)

Appellant had no notice, either constructive or actual, that the land it was acquiring was burdened with anything more than its proportionate share of the expense of upkeep and repair of the common diversion works of the water supply. Under these conditions appellant cannot be required to pay more than its proportionate share of such expense. (15 C. J. 1253, note 95; California Packing Corp. v. Grove, 51 Cal.App. 253 196 P. 891; Nampa & Meridian Irr. Dist. v. Gess, 17 Idaho 552, 106 P. 993.)

The Buckeye Ranch Company built a dam and diversion works and sold or traded water therefrom to appellant, respondent and several others, and the company has no further interest in the works or water; such purchasers are tenants in common as to said diversion works and are liable for their repair and upkeep in proportion to the amount of water each user takes therefrom. (C. S., secs. 5328, 5372, 5659; 7 R. C. L. 816; Raylston Ins. Co. v. Davis, 68 N.C. 17, 12 Am. Rep. 624; Powell v. Powell, 22 Idaho 531, 126 P. 1058; Keyser v. Morehead, 23 Idaho 501, 130 P. 992; Duplesse v. Heskell, 89 Vt. 166, 94 A. 503; Carnes v. Dalton, 56 Ore. 596, 110 P. 170; Moss v. Rose, 27 Ore. 595, 50 Am. St. 743, 41 P. 666.)

A contract whereby one party agrees to "turn" to the other a certain amount of water from a diversion works being constructed, without damage to the second party, does not obligate the builder of such works to maintain the same for all time at his own expense exclusively. (C. S., sec. 5659; Nampa & Meridian Irr. Dist. v. Gess, supra.)

Hawley & Hawley, for Respondent.

Appellant has no standing in this court in that it has not complied with the requirements of rule 42. (C. S., sec. 6886; Smith v. Williams, 36 Miss. 545; Lloyd v. Chapman, 93 F. 599, 35 C. C. A. 474; Hedlun v. Holy Terror Min. Co., 16 S.D. 261, 92 N.W. 31, 36; Squires v. Foorman, 10 Cal. 298; Franz Falk Brewing Co. v. Mielenz, 5 Dak. 136, 37 N.W. 728; State v. Chapman, 1 S.D. 414, 47 N.W. 411, 10 L. R. A. 432; Smith v. Wallace National Bank, 27 Idaho 441, 150 P. 21; Nelson Bennett v. Twin Falls Co. (on rehearing), 14 Idaho 5, 93 P. 789.)

The trial court did not err in failing to sustain objections made to the introduction of oral evidence referred to in the appellant's assignment of error No. 1. (Keller v. Webb, 125 Mass. 88; Hinneman v. Rosenbac, 39 N.Y. 98; Montelius v. Atherton, 6 Colo. 326; Ball v. Berrymen, 73 Ill. 30; Pimney v. Thompson, 3 Iowa 74; 2 Parsons on Contracts, 5th ed., 549; Martin v. Huyler, 55 Hun (N. Y.), 611; Goldsmith v. Holmes, 36 F. 484, 13 Sawy. 526, 1 L. R. A. 816; Cook v. Brown, 62 Mich. 473, 4 Am. St. 870, 29 N.W. 46; Spongberg v. First Nat. Bank, 15 Idaho 671, 99 P. 712; Barnett v. Hagan, 18 Idaho 104, 108 P. 743.)

The findings of fact, conclusions of law and decree are squarely in accord with the evidence and supported by the law. ( Broadbent v. Brumback, 2 Idaho 366, 16 P. 555; Leggat v. Blomberg, 15 Idaho 496, 98 P. 723; Donaldson v. Donaldson, 31 Idaho 180, 170 P. 94; Bafus v. Peeper, 33 Idaho 324, 194 P. 96; Brown v. Grubb, 23 Idaho 537, 130 P. 1073; Brinton v. Steele, 23 Idaho 615, 131 P. 662; Morris-Roberts Co. v. Marriner, 24 Idaho 788, 135 P. 1166; Holland v. Avondale Co. Dist., 30 Idaho 479, 166 P. 259; McKeehan v. Vollmer Clearwater Co., 30 Idaho 505, Ann. Cas. 1918E, 1197, 166 P. 256.)

Neither the appellant nor its predecessor in interest contracted to furnish water to respondent from its diversion works, but the respondent, to enable appellant's predecessor to obtain a water supply from Thompson Spring, permitted the removal of part of its own diversion works and afterward received its water as raised by appellant's dam. (Paddock v. Clark, 22 Idaho 498, 126 P. 1053; Russell v. Irish, 20 Idaho 194, 118 P. 501; Hall v. Blackman, 8 Idaho 272, 68 P. 19; C. S., sec. 5328.)

The respondent is not a tenant in common with appellant in the dam or diversion works constructed by appellant. (3 Words and Phrases, 2307; 7 R. C. L. 837; Keyser v. Morehead, 23 Idaho 501, 130 P. 992; Nampa & Meridian Irr. Dist. v. Gess, 17 Idaho 552, 106 P. 993; Gess v. Nampa & Meridian Irr. Dist., 33 Idaho 189, 192 P. 474.)

FLYNN, Commissioner. McCarthy, Dunn and William A. Lee, JJ., concur.

OPINION

FLYNN, Commissioner.

In this case, appellant's brief, after stating the facts, makes the following "Assignments of Error":

1. "The trial court erred in failing to sustain objections made to the introduction of oral evidence which tended to vary, add to, modify and analyze formal written instruments before the court.

2. "The findings of fact, conclusions of law and decree are contrary to the law and the evidence."

Respondent contends that appellant has no standing in this court because of noncompliance with rule 42 of the supreme court rules, which provides that "the brief of appellant shall contain a distinct enumeration of the several errors relied on." The above-quoted "Assignments of Error" is the only attempt to comply with the rule and while we deem it of no moment that the term "Enumeration of Errors" or "Specification of Errors" was not used, we feel that the catch-all assignments of error in appellant's brief are of no assistance to the court or to opposing counsel, which is the reason for and the purpose of the rule. (Smith v. Wallace Nat. Bank, 27 Idaho 441, 150 P. 21; Smith v. Williams, 36 Miss. 545; Mokelumne Hill C. & M. Co. v. Woodbury, 10 Cal. 187; Hedlun v. Holy Terror Min. Co., 16 S.D. 261, 92 N.W. 31, 36.) In Whitney v. Dewey, 10 Idaho 633, 80 P. 1117, 69 L. R. A. 572, and in Smith v. Wallace Nat. Bank (supra), the object of the rule was held to be attained by reason of the specifications made on the motion for new trial and contained in the transcript. In Marnella v. Froman, 35 Idaho 21, 204 P. 202, the specification of error was "that the judgment of the court is contrary to law and evidence for each of the reasons hereinbefore set forth." The court held that the particulars of insufficiency of the evidence were set forth in the preceding specifications thus referred to and were therefore sufficiently set forth in the brief. As to the sufficiency of the evidence to support the findings and decree, the attempted specification of errors in the present case would have been insufficient under the practice of a bill of exceptions. (Humphrey v. Whitney, 17 Idaho 14, 103 P. 389.) In Citizens' Right of Way Co. v. Ayers, 32 Idaho 206, 179 P. 954, it was held that under C. L., sec. 4434 (C. S., sec. 6886), a specification in the brief of the insufficiency of the evidence to support the findings is necessary to bring such question before the court for review. In Standley v. Flint, 10 Idaho 629, 79 P. 815, this court said: "The requirements of that rule should be carefully followed by counsel for appellants in preparing briefs." We see no efficacy in this warning or in the rule itself if the rule is not to be enforced. Therefore, we are of the opinion that the second assignment of error above quoted is not sufficient under rule 42 to entitle appellant to a review of the findings, conclusions and decree in order to determine whether they are contrary to the law and the evidence.

C. S., sec. 6886, subd. 3, provides that when the reporter's transcript is settled it "shall have the force and effect of a bill of exceptions duly settled and allowed, and shall be deemed adequate to present for review any ruling appearing therein to have been excepted to, or by statute deemed excepted to, or any question of insufficiency of evidence which may afterward be properly presented by specification of insufficiency in the brief on appeal." We have disposed of the question of the specification of insufficiency of the evidence.

Notwithstanding...