Newport Water Co. v. Kellogg

Decision Date03 July 1918
Citation31 Idaho 574,174 P. 602
PartiesNEWPORT WATER COMPANY, a Corporation, Respondent, v. WILLIAM G. KELLOGG and LILLIE KELLOGG, His Wife, Appellants
CourtIdaho Supreme Court

PLEADING-DEMURRER-WATER AND WATERCOURSES-WATER LICENSE-DISTRIBUTION IN FOREIGN STATE - APPEAL AND ERROR - SPECIFICATIONS OF ERROR.

1. The objection that a complaint does not state facts sufficient to constitute a cause of action is never waived.

2. If the complaint fails to state a cause of action a judgment based thereon must be reversed on appeal, even in the absence of a demurrer.

3. Where the record on appeal fails to show any action taken by the court upon a demurrer, the objection that the complaint does not state a cause of action must be considered in the same light as if the sufficiency of the complaint were attacked after judgment.

4. Where a complaint is attacked after a judgment upon the ground that it does not state facts sufficient to constitute a cause of action, every reasonable intendment is indulged in favor of the sufficiency of the complaint, and all inferences of fact which may be drawn from the facts alleged must be deemed, within reasonable limits, to be alleged in order to sustain the judgment.

5. By obtaining the issuance of a water license, the appropriator does not waive any rights he may have had previously through actual diversion and application to a beneficial use.

6. The specification of error that a finding is not supported by the evidence should designate the particulars in which the evidence fails to support the finding.

7. Where sufficient water can be developed it is the privilege of the subsequent appropriator to develop the same without unlawful interference with the prior appropriator's supply.

8. One who sells land with the understanding and agreement that it is to be used for a certain specified purpose is estopped from questioning his grantee's right to use it for the purpose for which it was purchased.

[As to injunctions as remedy for wrongful diversion of watercourse see note in Ann.Cas. 1912D, 13]

APPEAL from the District Court of the Eighth Judicial District, for Bonner County. Hon. R. N. Dunn, Judge.

Action to obtain injunction and for damages. Judgment for plaintiff. Affirmed.

Judgment affirmed. Costs awarded to respondent.

E. W Wheelan, for Appellants.

The demurrer to the complaint on the ground it does not state facts sufficient to constitute a cause of action should be sustained. The complaint contains no allegation to the effect that the plaintiff corporation has acquired a water right, or has complied with the laws of the state of Idaho regulating the appropriation and diversion of waters.

There is no allegation in the complaint that the plaintiff has sustained any actual damage by reason of the construction of the ditch by the defendants. (Bower v. Moorman, 27 Idaho 162, 182, 147 P. 496; Boise Development Co. v. Idaho Trust etc. Bank, 24 Idaho 36, 133 P. 916.)

It is incumbent upon the plaintiff to allege in its complaint and prove at the trial that it did not have sufficient water to supply its demands by reason of the diversion of the water by defendants. (Salt Lake City v. Gardner, 39 Utah 30, 114 P. 147.)

J. F. Ailshie, for Respondent.

Appropriation by use is just as legal and valid as though plaintiff had secured a permit from the state engineer and posted and recorded its notices under the old statutes. (Nielson v. Parker, 19 Idaho 727, 115 P. 488; Washington State Sugar Co. v. Goodrich, 27 Idaho 26, 38, 147 P. 1073; Sandpoint Water & Light Co. v. Panhandle Dev. Co., 11 Idaho 405, 83 P. 347.)

The defendant never submitted or requested any finding on the issue on which he now complains that no finding was made. It was necessary for him to do so if he desired to assign that as error. (People v. Hunt, 1 Idaho 433; Johnson v. Fraser, 2 Idaho 404, 18 P. 48)

Under the issues and facts proven, the appellants were clearly estopped from in any manner claiming the water in this gravel basin or from the springs supplying respondent's reservoir. (Orient Mining Co. v. Freckleton, 27 Utah 125, 74 P. 652; Farber v. Page & Mott Lbr. Co., 20 Idaho 354, 118 P. 664; Herman on Estoppel, sec. 735; Town v. Needham, 3 Paige (N. Y.), 545, 24 Am. Dec. 246, 254; Anderson v. Hubble, 93 Ind. 570, 47 Am. Rep. 394, 399; Ada County Farmers' Irr. Co. v. Farmers' Canal Co., 5 Idaho 793, 799, 51 P. 990, 40 L. R. A. 485; McGinness v. Stanfield, 6 Idaho 372, 55 P. 1020; Knowles v. New Sweden Irr. Dist., 16 Idaho 217, 225, 101 P. 81.)

RICE, J. Budge, C. J., and Morgan, J., concur.

OPINION

RICE, J.

This action was brought by the Newport Water Company, a corporation, against appellants William G. Kellogg and Lillie Kellogg, his wife, to obtain a perpetual injunction restraining appellants from further extending and enlarging a certain ditch, and a mandatory injunction requiring them to fill the ditch already constructed, and for damages. The respondent company was organized for the purpose of supplying water to the town of Newport, part of which is in the state of Idaho and part in the state of Washington. On November 25, 1904, appellants conveyed to the respondent, by warranty deed, certain real property, upon which respondent thereafter constructed a reservoir, together with wells, ditches, pipe-lines, etc., for the purpose of diverting and impounding certain subterranean water in that vicinity. This water was then conducted from the reservoir to the town of Newport and there sold and distributed to the consumers in the states of Idaho and Washington. Early in the year 1915, appellants constructed a ditch within a few feet of the boundary line between their land and that of respondent, and respondent complains that the construction thereof has caused the water to percolate and flow out through the gravel and soil and into said ditch, and thereby has greatly reduced the value and supply of water to respondent's irreparable injury and damage.

The first specification of error assigned is the overruling of the demurrer to the complaint filed in this action. The record contains no order of the court to that effect, and but for the fact that the demurrer is upon the ground that the complaint fails to state a cause of action the same would be disregarded. Rev. Codes, sec. 4178, provides: "If no objection be taken, either by demurrer or answer, the defendant must be deemed to have waived the same excepting only the objection to the jurisdiction of the court, and the objection that the complaint does not state facts sufficient to constitute a cause of action." Under this section, if the complaint fails to state a cause of action, a judgment based thereon must be reversed on appeal, even in the absence of a demurrer. (Crowley v. Croesus Gold etc. Min. Co., 12 Idaho 530, 86 P. 536.)

Inasmuch as the record fails to show any action of the court upon the demurrer, the objection that the complaint does not state a cause of action must be considered here in the same light as if the sufficiency of the complaint were attacked after the judgment. In such a case every reasonable intendment is indulged in favor of the sufficiency of the complaint, and all inferences of fact which may be drawn from the facts alleged must be deemed, within reasonable limits, to be alleged in order to sustain the judgment. While the complaint in the case may be deficient in the statement of the ultimate facts relied upon, still, viewed even in the most unfavorable...

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