Raide v. Dollar

• Decision Date: 28 December 1921
• Parties: E. E. RAIDE, Respondent, v. DAVID H. DOLLAR, Appellant
• Court: Idaho Supreme Court

203 P. 469

34 Idaho 682

E. E. RAIDE, Respondent, v. DAVID H. DOLLAR, Appellant

Supreme Court of Idaho

December 28, 1921

EVIDENCE - OPINION TESTIMONY - ADMISSIBILITY OF - REAL PROPERTY-DAMAGES-TEMPORARY INJURY-INSTRUCTIONS-WHOLE CHARGE TO BE READ AND CONSIDERED TOGETHER - RIVER - HIGH-WATER MARK.

1. Evidence examined and held sufficient to support the verdict and judgment.

2. Error cannot be predicated upon the admission of testimony of witnesses as to what in their opinion it would cost to place certain land back in the same condition that it was before logs were dragged over it, where such witnesses testified as to the nature and extent of the injury.

3. In an action for damages for temporary injury to real property the owner is entitled to recover the amount necessary to repair such injury and to place the land back in the same condition it was immediately prior to the injury.

4. All of the instructions given in a case must be read and considered together, and where, taken as a whole, they correctly state the law and are not inconsistent, but may be reasonably and fairly harmonized, it will be assumed that the jury gave due consideration to the whole charge, and was not misled by any isolated portion thereof.

5. The high-water mark of a river, not subject to tide, is the line which the river impresses on the soil by covering it for sufficient periods to deprive it of vegetation and to destroy its value for agriculture.

6. Held, that the record contains no evidence tending to show that the land claimed by respondent is below the high-water mark of the north fork of the Coeur d'Alene River.

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

Action for damages to real property. Judgment for plaintiff. Affirmed.

Judgment affirmed. Costs awarded to respondent.

Robert H. Elder and C. D. Randall, for Appellant.

The court committed prejudicial error in not requiring witnesses to qualify before receiving their testimony. (Jones on Evidence, sec. 363, p. 456.)

"If the land is temporarily but not permanently injured, the owner is entitled to recover the amount necessary to repair the injury and put the land in the condition it was at the time immediately preceding the injury, with legal interest thereon to the time of the trial." (Boise Valley Const. Co. v. Kroeger, 17 Idaho 384, 105 P. 1070, 28 L R. A., N. S., 968; Young v. Extension Ditch Co., 13 Idaho 174, 89 P. 296.)

"On navigable streams riparian rights do not extend beyond the high-water mark." (Northern P. Ry. Co. v Hirzel, 29 Idaho 438, 161 P. 854.)

"The title of the state extends not only to the land underlying that part of a navigable stream or body of water over which navigation may be conducted, but extends to the entire bed, and in particular to the land which is covered and uncovered by the ordinary rise and fall of the tide, stream or lake." (Churchill Co. v. Kingsbury, 178 Cal. 554, 174 P. 329; Barney v. Keokuk, 94 U.S. 324, 24 L.Ed. 224; McManus v. Carmichael, 3 Iowa 1.)

The defendant had the right to use the channel of the north fork of the Coeur d'Alene River at all stages of the water (Idaho Northern Ry. Co. v. Post Falls Lbr. Co., 20 Idaho 695, 119 P. 1098, 38 L. R. A., N. S., 114; Mashburn v. St. Joe Improvement Co., 19 Idaho 30, 113 P. 92, 35 L. R. A., N. S., 824), and it has been held that such use, even when the water is above the line of mean high water, would not be a use of the adjoining land. (Lownsdale v. Grays Harbor Boom Co., 36 Wash. 198, 78 P. 904.)

McFarland & McFarland, for Respondent.

Where one instruction is ambiguous or incomplete, but taken with all the instructions correctly states the law, the decision of the lower court will not be reversed on account of such incomplete or ambiguous instruction. (Brayman v. Russell & Pugh Lumber Co., 31 Idaho 140, 169 P. 932.)

BUDGE, J. Rice, C. J., and Dunn and Lee, JJ., concur. McCarthy, J., dissents.

OPINION

BUDGE, J.

In respondent's complaint there are two causes of action alleged. In the second cause of action respondent sought to recover damages sustained by reason of the destruction of his dwelling-house and personal property situated therein and permanent injury to the land described in the first cause of action. The injuries complained of and sustained by respondent in his second cause of action were found upon the trial by the court to have been due to the act of God, and not to negligence or fault upon the part of appellant, but to an extraordinary flood which occurred on or about the thirtieth day of December, 1917, in the north fork of the Coeur d'Alene River, adjacent to which stream respondent's land is situated, the waters having suddenly risen to an unprecedented height, causing logs belonging to appellant in large numbers which were upon rollways along the bank of the river to be precipitated into the stream and carried down with large quantities of other logs belonging to other parties, as well as stumps and debris, on to the lands of the respondent.

In his first cause of action respondent alleged, inter alia, that about four and a half months after said logs had been permitted to lodge and jam upon and against his said lands and premises, appellant negligently and wrongfully and without the consent of and contrary to respondent's wishes, with force and violence entered upon respondent's lands and premises and particularly upon his meadow, with teams of horses, logging trucks and devices, and proceeded to remove the logs of appellant from the premises, and in so doing cut up and injured his meadow lands, causing numerous and divers roads and roadways to be made, on, over and across the same, to his damage in the sum of $ 500, and negligently and wilfully cut down and destroyed two apple trees of the value of $ 25 each, whereby respondent was further damaged in the sum of $ 50.

Appellant entered a general and special denial to the foregoing allegations contained in respondent's first cause of action.

Judgment was entered upon the verdict of the jury in favor of the respondent, assessing his damages in the sum of $ 500, from which judgment and an order denying a motion for a new trial, this appeal is prosecuted.

Appellant assigns as error the insufficiency of the evidence to support the verdict or judgment; the action of the court in giving and in refusing to give certain instructions; that the verdict is excessive and was rendered under the influence of passion and prejudice; and that the court erred in overruling defendant's motion for a new trial.

The latter error assigned is not discussed in appellant's brief, and will not be considered upon this appeal.

In order to pass upon the question of the sufficiency of the evidence, it becomes necessary to review briefly some of the testimony offered during the trial. It is admitted that respondent was the owner in fee, in the possession and entitled to the possession of the premises described in his complaint. It was also established beyond dispute that appellant went upon the premises and particularly the meadow land of respondent and removed therefrom by the use of teams, trucks and other devices, a large number of logs that had been deposited upon the meadow lands as a result of the flood, and that the same were dragged for some distance over the meadow lands to the bank of the river and dumped into the stream for the purpose of being floated down to the mills. It is insisted by appellant that there is no competent evidence to support the verdict or judgment, and that no injury was done to the meadow lands by reason of the removal of the logs.

Respondent testified that in moving the logs, ditches were plowed into the meadow. Witness Neurmi for respondent testified that some of these ditches were over a foot deep. Witness Wilson corroborated the testimony of respondent and the former witness as to the condition in which the...