Nordick v. Sorensen
| Decision Date | 09 April 1959 |
| Docket Number | No. 8633,8633 |
| Citation | 81 Idaho 117,338 P.2d 766 |
| Parties | Pearl Hillman NORDICK and Mabel Hillman Quayle, Plaintiffs-Respondents, v. Chris SORENSEN and Douglas Sorensen, Defendants-Appellants. |
| Court | Idaho Supreme Court |
O. R. Baum, Ruby Y. Brown, and Gee & Hargraves, Pocatello, for appellants.
Merrill & Merrill, Pocatello, for respondents.
Plaintiffs seek redress in their first cause of action:
(1) That plaintiffs be decreed a prior right against defendants to the use of 125 miner's inches for irrigation purposes of the water of Gooseberry creek and its tributaries, situate in Bannock County, to which plaintiffs allege entitlement by reason of a prior decree, and
(2) That defendants be held in contempt and punished accordingly for having willfully violated the trial court's order restraining them from interfering with plaintiffs' use of such decreed water.
Plaintiffs seek further redress in their second cause of action:
(3) For damages to plaintiffs' crops allegedly caused by defendants' wrongful diversion from Gooseberry creek of plaintiffs' decreed water.
The issues were framed by plaintiffs' amended and supplemental complaint; a restraining order or injunction pendente lite directed against defendants, issued June 27, 1951; defendants' answer and cross-complaint, and plaintiffs' answer to the cross-complaint. Following is a brief resume of the relevant facts.
Gooseberry creek, which flows through plaintiffs' lands, derives its water supply principally from melting snows in mountainous areas. Its flow has never exceeded a maximum of 125 miner's inches, except on rare occasions during flood periods; during the irrigation season its flow varies from the flood stage maximum, to a minimum not exceeding l0 miner's inches.
The waters of Gooseberry creek were first appropriated in 1872 and 1873 by the grantors, predecessors in interest, of Ira King Hillman.
A controversy having arisen between Ira King Hillman and subsequent users of the waters of Gooseberry creek, Hillman commenced action May 9, 1889, in the district court in Bingham County, wherein his land, irrigated in part by the waters of Gooseberry creek, then was situate, for an adjudication of the waters of said creek. Hillman's appeal from the decree attempting adjudication resulted in reversal of the district court with directions to enter its decree in favor of Hillman 'for all the waters of Gooseberry creek, and the tributaries thereof, to the extent of 125 inches, * * * and enjoining the said defendants, and each of them, and the agents and servants thereof, from in any manner interfering with said right to the waters of said creek, and the tributaries thereof, to the extent of said 125 inches.' Hillman v. Hardwick, 3 Idaho 255, 262, 28 P. 438, 440. The district court upon remittitur entered the decree as directed, June 6, 1892.
Plaintiffs are daughters of Ira King Hillman, and successors by inheritance of his interest in the lands, described in their amended and supplemental complaint.
Defendants recognize the decree in Hillman v. Hardwick, supra.
Defendants by cross-complaint allege their ownership of certain lands situate generally in the watershed of Gooseberry creek, above the lands of plaintiffs. They then allege that for 50 years last past they and their predecessors in interest have used approximately 80 miner's inches of the waters of upper Gooseberry creek and its tributaries 'and other sources of supply' in the irrigation of 80 acres of their land; they sought decree of the court awarding them the right to the use of 80 inches of water for irrigation of 80 acres of their land. Later, April 26, 1957, after conclusion of the trial, defendants filed a motion to amend their cross-complaint so as to allege their use of approximately 35 miner's inches of the waters of upper Gooseberry creek for more than 50 years last past upon 35 acres of their lands; plaintiffs' abandonment of the use of the 35 miner's inches of the decreed waters of Gooseberry creek by their failure to apply it to beneficial use and, that defendants had so applied it for more than five years prior to the commencement of this action from alleged points of diversion.
Plaintiffs, upon succeeding to the interests of their father, they having each inherited a separate parcel of his lands, entered into a contract in writing during March, 1945, whereby they agreed to an equal division and ownership of the right to the use of 125 miner's inches of the waters of Gooseberry creek and its tributaries decreed in favor of their father in the case of Hillman v. Hardwick, supra; that one-half of the decreed waters and the ditches and ditch rights shall be the property of Pearl Hillman Nordick, appurtenant to her inherited tract of the land, and one-half thereof to the property of Mabel Hillman Quayle, appurtenant to her inherited tract of the land; they then recognized that during certain seasons of the year the most beneficial use of the water requires rotation of irrigation waters and they agreed upon a plan of rotation commencing the year 1945. They agreed that the contract be construed as covenants running with the land.
The district court, at the conclusion of the trial, entered its findings of fact and conclusions of law, followed by its decree adjudging each plaintiff to the owner of her respective tract of land as alleged in the amended and supplemental complaint, and that the land was arid in character and incapable of producing ordinary agricultural crops without irrigation; the court then fixed the duty of water for the irrigation of said land at one miner's inch per acre over and above transportation losses.
The court then adjudged plaintiffs to have a prior right over the defendants to all the waters of Gooseberry creek and its tributaries, including springs arising upon defendants' land, which if not interfered with would flow into Gooseberry creek, up to the measure of 125 miner's inches of water for use upon the lands of plaintiffs, pursuant to the decree entered June 6, 1892, in Hillman v. Hardwick, supra.
The court then decreed that 123 1/2 inches of the decreed water shall be measured (1) at the point where Upper Hillman Ditch takes out of Gooseberry creek in the Southeast Quarter of the Southeast Quarter of Section 18, Township 13 South, Range 38 East of the Boise Meridian (the decree, indicating the Southeast Quarter of the Southwest Quarter, in said Township and Range, appears by the record to be a clerical error), and (2) at the point where Lower Hillman Ditch takes out of Gooseberry creek in the Northwest Quarter of the Northeast Quarter of Section 16, of said Township and Range; and 1 1/2 inches of the decreed water shall be measured at the confluence of Chicken creek and Gooseberry creek at a point in the Southwest Quarter of the Southwest Quarter of Section 10, in said Township and Range. The court then restrained defendants from diverting any of the waters of Gooseberry creek or its tributaries whenever the decreed rights of plaintiffs to the waters of such stream are not filled.
The court found, inter alia, that defendants wrongfully diverted the waters of Gooseberry creek, and its tributaries, at times when defendants knew, or should have known, that the flow of said creek was less than plaintiffs' decreed right of 125 miner's inches and when plaintiffs were in need of the waters for irrigation of said lands; particularly, the court found that such wrongful diversion occurred at divers times notwithstanding its June 27, 1951 order, restraining defendants from interfering with the rights of plaintiffs to the primary use of said 125 inches of decreed waters.
The court then decreed that defendants had violated the restraining order, by virtue of their acts aforesaid, and adjudged each of them guilty of contempt of court, and attempted punishment in excess of the maximum extent provided by law ($500 fine and 5 days in jail).
The court, pursuant to its findings in the premises, adjudged plaintiff Pearl Hillman Nordick entitled to judgment against defendants for crop damage sustained by her by defendants' improper use and diversion of said waters during the times they illegally diverted same, in the sum of $1,000 with interest; and adjudged plaintiff Mabel Hillman Quayle to be entitled to judgment against defendants for like reasons and in like amount, together with costs.
The court adjudged defendants entitled to nothing on their cross-complaint and ordered it dismissed.
Defendants by specification of error question the jurisdiction of the district court to entertain the contempt proceeding, though incidental to and part of plaintiffs' first cause of action, and to assess the penalty which defendants assert constitutes assessment of damages in the contempt proceeding.
Defendants' assertion that 'this is an action for contempt and damages' is not truly descriptive. Rather, by their action, plaintiffs seek to quiet their title to their decreed irrigation water, and restrain defendants from interfering with plaintiffs' use of the water when needed. Plaintiffs by a separate cause of action then seek recovery of crop damage caused by defendants in depriving plaintiffs of their decreed water. Those matters are set forth in plaintiffs' original complaint filed June 13, 1951.
The restraining order, after a show cause hearing, issued June 27, 1951, enjoining defendants from interfering with plaintiffs' use of their decreed water when needed.
It was not until defendants allegedly had willfully, repeatedly and flagrantly violated the restraining order that plaintiffs filed their amended and supplemental complaint October 1, 1956, directing the trial court's attention to such violations, and suggesting that defendants be punished for contempt 'in form and manner provided by law.'
Defendants cite Levan v. Richards, 4 Idaho 667, 43 P. 574, as prohibiting an award of damages in a contempt...
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