Penninger Lateral Co., Ltd. v. Clark

• Decision Date: 31 August 1912
• Citation: 126 P. 524,22 Idaho 397
• Parties: PENNINGER LATERAL CO., LTD., Appellant, v. A. D. CLARK, Respondent
• Court: Idaho Supreme Court

126 P. 524

22 Idaho 397

PENNINGER LATERAL CO., LTD., Appellant, v. A. D. CLARK, Respondent

Supreme Court of Idaho

August 31, 1912

ACTION AT LAW-EQUITABLE DEFENSE-TRIAL-FINDINGS OF JURY-FINDINGS OF COURT-JUDGMENT-WHEN VOID.

(Syllabus by the court.)

1. Where an action is brought to recover a debt alleged to be due for maintaining and keeping up a canal through which water is carried to the respective owners of said ditch, and said cause is put in issue by general denials, and an equitable defense is also filed to said cause of action by a cross-complaint alleging title in the defendant and cross-complainant in the said canal and praying that the title of defendant be quieted, it is error for the trial court to submit to the jury the issues made by the complaint and answer, and also the issues arising upon the cross-complaint and the answer thereto, as a single question to be determined by a general verdict.

2. In an action at law, where a suit in equity is interposed as a defense, and such equitable relief alleged constitutes an independent cause of action and is properly plead and such defense as may result in a decree in his favor, the party making such plea becomes the actor and plaintiff as to all matters alleged in such affirmative defense.

3. Where an action at law is brought and an equitable defense is interposed by a cross-complaint and also in an action cognizable in equity where a cross-action at law is interposed, the proper rule of procedure for the court is to hear and dispose of the equitable cause of action before proceeding to try the issues at law.

4. Where an action is brought and an equitable defense is interposed by a cross-complaint, and also in an action cognizable in equity where a cross-action at law is interposed, the court may direct the jury to find a general verdict upon issues made by the complaint and answer. And if the court desires the advice or aid of the jury in the equity suit made by the cross-complaint, it is proper for the court to submit such questions as are proper and applicable to the issues to the jury for their answers, and may adopt such findings of the jury as the findings of the court; but where such special questions are not submitted to the jury, it is necessary for the trial court to make findings in the equity action as a basis upon which the judgment is founded.

APPEAL from the District Court of the Third Judicial District for Ada County. Hon. Carl A. Davis, Judge.

Action at law to recover damages where an equitable defense is presented by cross-complaint. Judgment for respondent. Reversed.

Judgment reversed and a new trial ordered. Costs awarded to appellant.

J. C Johnston, for Appellant.

No action purely equitable in character can proceed to a decree upon the verdict of a jury as the foundation thereof, but if the jury is called in such case, it must be to aid the court in determining the questions of fact, which, when found, are the findings of the court. (Ramsey v. Hart, 1 Idaho 423.)

In such a case the court may adopt the findings of the jury as its findings; but if the jury fails to find upon any of the material issues made by the pleadings, the court should find upon those issues before entering judgment. (Sandstrom v Smith, 12 Idaho 446, 86 P. 416.)

Where a defendant files a separate answer setting up affirmative matter, constituting a defense, it is error for the trial court to fail to make findings on the issues thus raised. (Lorenzi v. Star Market Co., 19 Idaho 674, 115 P. 490.)

C. II. Edwards and D. T. Miller, for Respondent, cite no authorities on points decided.

STEWART, C. J. Ailshie and Sullivan, JJ., concur.

OPINION

STEWART, C. J.

This action was instituted by the appellant to recover from the respondent the sum of $ 258.95. The complaint contains two causes of action. The first cause of action alleges that the plaintiff expended for the maintenance and keeping up of the canal designated as the Penninger lateral, and for repairs of the same, and for the payment of the water-master for the years 1904, 1905, 1906, 1907, 1908 and 1909, the sum of $ 240.47, of which sum the defendant has paid the sum of $ 93.39, leaving still due and unpaid the sum of $ 147.08.

The second cause of action alleges that during the year 1904 the defendant secured from the plaintiff an additional right to the use of water flowing in the Penninger lateral and the extension thereof with which to irrigate an additional amount of land owned by the defendant, and in pursuance of such agreement the plaintiff has furnished such additional amount of water as requested by the defendant, continuously during the years 1904, 1905, 1906, 1907, 1908 and 1909, with which to irrigate said additional amount of land and all the lands owned by the defendant; and that the defendant promised to pay for the reasonable use of said water so used during all of said years and with which he irrigated his land, consisting of 223.75 acres of land; and that the reasonable use and value of said water so furnished constituted a running account between the plaintiff and the defendant, and that the reasonable value of the water during said years is the sum of $ 111.87, and that said sum is due and owing from the defendant to the plaintiff. To this complaint the defendant filed an answer, denying specifically the material allegations of the complaint. The defendant also filed a cross-complaint, in which it is alleged in substance that prior to the organization of the Penninger Lateral Co., Ltd., and during the year 1902 the land through which such lateral then was constructed was owned and controlled and in the possession of one Elliott and A. H. Eagleson & Sons, and that said Elliott and Eagleson & Sons constructed a ditch on their lands and at the exact place and along which the Penninger lateral ditch is, which was afterward transferred to the Penninger Lateral Co., and is known as the Penninger lateral; and that while the said Penninger lateral ditch belonged to Elliott and A. H. Eagleson & Sons, and during the year 1902, the defendant, desiring to construct a ditch across the said land and along the line of said ditch and in the possession of Elliott and A. H. Eagleson & Sons, and for the purpose of taking and conveying water from the New York canal to his own lands, made and entered into a certain agreement with Elliott and A. H. Eagleson & Sons, who were the owners and in possession of the aforesaid ditch, as well as the land through which it was constructed, whereby it was agreed that in consideration that the defendant would and did enlarge and construct the ditch known as the Penninger lateral to such an extent and in such manner so that it would have the capacity to carry all the water desired by the defendant, and also to carry a certain amount of water to irrigate the lands of Elliott and A. H. Eagleson & Sons, that the defendant should have the right of way through said lands and an interest in said ditch to the extent of conveying through said ditch a sufficient amount of water with which to irrigate the defendant's land; and that in accordance with such agreement he would enlarge and construct at his own expense the said ditch now known as the Penninger lateral, and that such enlargement and construction was in the year 1902 and prior to the organization of the Penninger Lateral Co., and prior to such company's acquiring any interest in said ditch, and by means of such enlargement of said ditch the same furnished the means of conveying the amount of water agreed upon the lands of Elliott and A. H. Eagleson & Sons and this defendant, and defendant constructed said ditch so large as to convey, and that it did convey, 219 inches of water to defendant's lands, and ever since said time, and in accordance with said agreement, defendant has taken said water through said ditch without paying any money or other consideration, except specified in such agreement made with Elliott and A. H. Eagleson & Sons; and in such cross-complaint the defendant prays that the plaintiff take nothing, and that he be decreed a perpetual water right to convey from the New York canal 219 inches of water through the said ditch, now known as the Penninger lateral, to the lands of the defendant. To this cross-complaint an answer was filed by the appellant denying the material allegations thereof.

Upon the issues thus presented a jury was called, and the cause was submitted to the jury and the jury returned the following verdict: "We, the jury in the above-entitled cause, find for the defendant." Upon this verdict the trial court rendered a judgment that the defendant recover from the plaintiff his costs in the sum of $ 83.85, and that the defendant is adjudged a perpetual right to convey through the New York canal, through the Penninger lateral, sufficient amount of water to irrigate 320 acres of land. This appeal is from the judgment and from the order denying a motion for a new trial.

The first error assigned by appellant and presented on this appeal is that the judgment of the court is erroneous and void, first, for the reason that the judgment is based solely upon the general verdict rendered by the jury, and that no special questions or findings were made by either the jury or the trial court either upon the cause of action set forth in the complaint or upon the cross-complaint which was for affirmative and equitable relief; and, second, that the general verdict rendered by the jury was not a finding and could not be a finding which could or would in any way be taken and accepted by the trial court as findings upon the cross-complaint, which demanded equitable relief, and is insufficient to justify the judgment.

An examination of the pleadings clearly shows that the complaint is an...