Petajaniemi v. Washington Water Power Co.

• Decision Date: 11 May 1912
• Citation: 124 P. 783,22 Idaho 20
• Parties: ELI PETAJANIEMI and Wife, Respondents, v. WASHINGTON WATER POWER CO., Appellant
• Court: Idaho Supreme Court

124 P. 783

22 Idaho 20

ELI PETAJANIEMI and Wife, Respondents, v. WASHINGTON WATER POWER CO., Appellant

Supreme Court of Idaho

May 11, 1912

JUDICIAL NOTICE-LAWS OF NATURE-CONFLICTING EVIDENCE-INSTRUCTIONS-CONDUCT OF COUNSEL.

(Syllabus by the court.)

1. Under the provisions of sec. 5950, Rev. Codes, the courts of this state take judicial notice of the laws of nature, and in such cases resort for their aid and information to appropriate books and documents of reference.

2. Where certain expert witnesses testify that a dam is a given elevation above sea level, and that it did not and could not hold back flood waters and cause the overflow of lands above that elevation, and other witnesses who saw the lands at the time of high or flood water season testified that it actually was flooded and submerged to a higher elevation than that testified to by the expert witnesses, there is such a substantial conflict in the evidence as to go to the jury and the conflict is a proper matter to be settled by the jury as a disputed fact in the case.

3. Evidence considered with reference to the damage done to certain lands by reason of the severance of a portion thereof caused by permanent flooding, examined and held sufficient to support the verdict and judgment.

4. Certain arguments and statements made by counsel to the jury outside of the facts in the case, tending to prejudice and inflame the jury against the adverse party, considered and commented upon.

APPEAL from the District Court of the First Judicial District for Shoshone County. Hon. W. W. Woods, Judge.

Action of plaintiffs for damages caused by flooding and submerging their lands. Judgment for plaintiffs and defendant appealed. Affirmed.

Judgment affirmed. Costs awarded in favor of respondents.

John P Gray, Frank T. Post, and Charles L. Heitman, for Appellant.

The laws of nature cannot be turned aside by the story of any witness or number of them. Water will flow down hill and seek its level; and in this case no matter how many witnesses might have said that lands above an elevation of 2,128 feet were affected by reason of the operation of the dams, the physical facts and natural laws convict them of being mistaken. From the earliest times, the verdicts of juries have been set aside by the courts where their findings are opposed to physical facts, and when it became apparent to the trial court that the contention of the respondents was contrary to natural law and was a physical impossibility, it became his duty to instruct the jury that the respondents were not entitled to compensation for any alleged damage to lands above an elevation of 2,128 feet. (In re Harriott's Estate, 145 N.Y. 540, 40 N.E. 246; Hunter v. New York O. & W. R. Co., 116 N.Y. 615, 23 N.E. 9, 6 L. R. A. 246; Elliott on Evidence, sec. 39; Rome Ry. & Light Co. v. Keel, 3 Ga.App. 769, 60 S.E. 468; Zimmerman v. Bannon, 101 Wis. 407, 77 N.W. 735; Peterson v. Standard Oil Co., 55 Ore. 511, Ann. Cas. 1912A, 625, 106 P. 337; Viemeister v. White, 179 N.Y. 235, 103 Am. St. 859, 1 Ann. Cas. 334, 72 N.E. 97, 70 L. R. A. 796; Brown v. Piper, 91 U.S. 37, 23 L.Ed. 200; Bier v. Hosford, 35 Wash. 544, 77 P. 867; Groth v. Thomann, 110 Wis. 488, 86 N.W. 181; Hudson v. Rome, W. & O. R. Co., 145 N.Y. 408, 40 N.E. 9; Finkelston v. Chicago M. & St. P. Ry. Co., 94 Wis. 270, 68 N.W. 1005; Badger v. Janesville Cotton Mills, 95 Wis. 599, 70 N.W. 687; O'Brien v. Chicago, St. P. M. & O. Ry. Co., 102 Wis. 628, 78 N.W. 1084; Flaherty v. Harrison, 98 Wis. 559, 74 N.W. 360; Cawley v. LaCrosse, 101 Wis. 145, 77 N.W. 179; Dingley v. Star Knitting Co., 134 N.Y. 552, 32 N.E. 35; Falkenstern v. Town of Greenfield, 145 Wis. 232, 130 N.W. 61; Elliott on Railroads, 2d ed., sec. 1703.)

It is the duty of the trial court to direct a verdict at the close of the evidence in two classes of cases: 1. That class in which the evidence is undisputed; and 2. That class in which the evidence is conflicting, but is of so conclusive a character that the court in the exercise of sound judicial discretion would set aside a verdict in opposition to it. (Woodward v. Chicago, M. & St. P. Ry. Co., 145 F. 577, 578, 75 C. C. A. 591.)

Counsel for the plaintiffs throughout the entire trial and in his argument to the jury indulged in repeated, continued, and studied efforts to inflame and prejudice the jury against the defendant. They were led to disregard scientific facts, and to make a finding in direct conflict with the certain result of the application of the laws of nature. (Lindsay v. Pettigrew, 3 S.D. 199, 52 N.W. 873; Winter v. Sass, 19 Kan. 556; Scripps v. Riley, 38 Mich. 10; Chicago City Ry. Co. v. Gregory, 221 Ill. 591, 6 Ann. Cas. 220, 77 N.E. 1112; Dillingham v. Scales, 78 Tex. 205, 14 S.W. 566; Bullard v. Boston & M. R. R. Co., 64 N.H. 27, 10 Am. St. 367, 5 A. 838; Jordan v. Wallace, 67 N.H. 175, 32 A. 174; Huckell v. McCoy, 38 Kan. 53, 15 P. 870.)

If there is the slightest doubt that such conduct and remarks of counsel had any influence whatsoever upon the jury in arriving at their verdict, then that doubt under the adjudicated cases is resolved in favor of the appellant, and if the court cannot say whether or no such conduct had any influence upon the jury, then a new trial should be granted. (Bremmer v. Railroad Co., 61 Wis. 114, 20 N.W. 687; Bullard v. Boston etc. R. R. Co., 64 N.H. 27, 10 Am. St. 367, 5 A. 838; Cleveland Paper Co v. Banks, 15 Neb. 20, 48 Am. Rep. 334, 16 N.W. 833; Henry v. Railroad Co., 70 Iowa 233, 30 N.W. 630; Campbell v. Maher, 105 Ind. 383, 4 N.E. 911; Bedford v. Penny, 58 Mich. 424, 25 N.W. 381; Union etc. Ins. Co. v. Cheever, 36 Ohio St. 201, 38 Am. Rep. 573.)

A. G. Kerns, for Respondents.

Where a part of a tract is taken by condemnation, damages to the remaining land shall be given. (2 Lewis, Em. Dom. 462; Sharp v. United States, 191 U.S. 341, 24 S.Ct. 114, 48 L.Ed. 211; Grand Rapids L. & D. Co. v. Chesebro, 74 Mich. 466, 42 N.W. 66; Backus, Jr., & Sons v. Fort St. U. D. Co., 169 U.S. 557, 18 S.Ct. 445, 42 L.Ed. 853.)

The compensation to the owner is to be estimated by reference to the uses for which the property is suitable, having regard to the existing business or wants of the community, or such as may reasonably be expected in the immediate future. (Boom Co. v. Patterson, 98 U.S. 403, 408, 25 L.Ed. 206.)

The rules as to the measure of damages was announced by this court in Young v. Extension Ditch Co., 13 Idaho 174, 89 P. 296. (See, also, Boise Valley Construction Co. v. Kroeger, 17 Idaho 384, 402, 105 P. 1070, 28 L. R. A., N. S., 968.)

AILSHIE, J. Stewart, C. J., and Sullivan, J., concur.

OPINION

AILSHIE, J.

Petajaniemi and his wife commenced an action against the appellant to recover damages for the flooding and permanent overflow of their lands, and about the same time a like action was commenced by Maak and wife and Hilda Ludden to recover for flooding and permanent overflow of their lands. The causes were transferred to Shoshone county and there, upon order of the judge, the two cases were consolidated and tried at the same time, and the jury returned a verdict in favor of Petajaniemi for $ 3,124.90 and for Maak in the sum of $ 3,976.67. A motion was made for a new trial and denied by the court, and this appeal has been prosecuted from both judgments. The same objections are made and the same points are presented in both appeals, and so what we say with reference to one will apply to both.

This case grows out of the following conditions and circumstances Many years ago the government, by treaty with the Coeur d'Alene Indians, provided for the opening of a portion of the Coeur d'Alene Indian Reservation. At the time of making this treaty, a man named Post was located at what is now known as Post Falls, on the Spokane river. At the time of entering into this treaty, the Indians reserved from the lands ceded to the government a tract of land occupied by Post, including the falls in the river and the water power therein, and thereupon the Indian chief, Andrew Seltics, executed and delivered to Post a document in the form of a deed or grant recognizing the rights of Post to the lands and water power, and thereafter Congress ratified the action of the Indians and issued a patent to Post for this land. Dams were maintained in the river at this place for many years. The appellant finally acquired this property, and after it became the owner of the property and water power, and about the year 1906, it began to improve and enlarge the dam. The Spokane river is the outlet to Lake Coeur d'Alene, and the lands occupied by the respondents herein are situated on the Coeur d'Alene river, which flows into the Coeur d'Alene lake. These lands are some 55 or 60 miles distant from Post Falls and are located along the banks of the Coeur d'Alene river. Prior to the improvement and reconstruction of the dams at Post Falls the low water elevation in Coeur d'Alene lake was 2,120 feet above mean sea level. The appellant so improved and constructed the dams as to enable it to raise what are called "bear-traps" at the top of the dam, whereby the water could be raised and held at an elevation of 2,126.5 feet above sea level. The chief purpose of these devices is to convert the Coeur d'Alene lake into a storage reservoir and hold the water during the low-water season at a higher elevation than the ordinary and natural condition of the lake, the Spokane river and the dam in the falls would previously permit, and thereby give a greater power capacity at Post Falls than could otherwise be obtained during the low-water season. This increased height in the dam naturally resulted in submerging the lands adjacent to Coeur d'Alene lake and the streams flowing into the lake to an elevation of at least 2,126.5 feet. The result was that...