Rayborn v. Salmon River Canal Co.

• Decision Date: 02 February 1931
• Docket Number: 5538
• Parties: C. W. RAYBORN, Respondent, v. SALMON RIVER CANAL COMPANY, LTD., a Corporation, Appellant
• Court: Idaho Supreme Court

295 P. 1001

50 Idaho 297

C. W. RAYBORN, Respondent, v. SALMON RIVER CANAL COMPANY, LTD., a Corporation, Appellant

No. 5538

Supreme Court of Idaho

February 2, 1931

WATER AND WATERCOURSES-CAREY ACT OPERATING COMPANY-FAILURE TO FURNISH WATER-NEGLIGENCE-LIABILITY-INSTRUCTIONS-NEW TRIAL.

1. Carey Act operating company is liable to consumers for negligent failure to deliver irrigation water in reasonable quantities, and with reasonably constant flow (Carey Act, 43 U.S. C. A., sec. 641 et seq.)

2. Carey Act operating company, if exercising ordinary care in operating irrigation system, is not liable, even though consumer does not receive proper quantity of water, or water is delivered irregularly (Carey Act, 43 U.S. C. A., sec. 641 et seq.).

3. Consumer of irrigation water, having alleged company's negligence in failing and neglecting to deliver water, must be held to such allegation.

4. Whether Carey Act operating company was negligent in failing to deliver irrigation water held for jury (Carey Act, 43 U.S C. A., sec. 641 et seq.).

5. Order granting new trial solely on theory of erroneous instructions will be reversed, where instructions are shown to be correct.

APPEAL from the District Court of the Eleventh Judicial District for Twin Falls County. Hon. Hugh A. Baker, Judge.

Action for damages for failure to deliver water. Judgment for defendant and new trial granted. Reversed and remanded, with instructions to reinstate judgment.

Reversed and remanded, with instructions. Costs awarded to appellant.

James R. Bothwell and W. Orr Chapman for Appellant.

Where both parties to an action try their case upon the same theory as to the issue tendered by the pleadings, they are bound by the theory so adopted, and where a case has been so tried neither party will be permitted after judgment to shift his position and seek relief upon a different theory. (Hindman v. Oregon Short Line R. R. Co., 32 Idaho 133, 178 P. 837; Brown v. Hardin, 31 Idaho 112, 169 P. 293; Milner v. Earl Fruit Co., 40 Idaho 339, 232 P. 581; Chamberlin v. Ivens, 36 Idaho 235, 242, 210 P. 580.)

The same act may constitute both a tort and a breach of contract, and the party may elect whether to sue for the breach, or sue in tort, and a suit on either is a waiver of the other. (Randall v. M. M. Moen Co., 206 Iowa 1319, 221 N.W. 944; Klingenberg v. Davis, 219 Mo.App. 1, 268 S.W. 99.)

J. W. Porter and J. W. Taylor, for Respondent.

A Carey Act operating company owes the contractual duty to the stockholder of delivering his proportion of the available water, and can excuse its failure to deliver only by showing that it was unable to make delivery by reason of some specific cause or condition which its exercise of reasonable care and diligence could not prevent. (3 Kinney on Irrigation and Water Rights, 3d ed., p. 2671; Rocky Ford Canal etc. Co. v. Simpson, 5 Colo. App. 30, 36 P. 638; O'Connor v. North Truckee Ditch Co., 17 Nev. 245, 30 P. 882; Hyink v. Low Line Irr. Co., 62 Mont. 401, 205 P. 236; Berg v. Yakima Valley Canal Co., 83 Wash. 451, 145 P. 619, L. R. A. 1915D, 292; Miller v. Imperial Water Co., 156 Cal. 27, 103 P. 227, 24 L. R. A., N. S., 372; Mountain Supply Ditch Co. v. Lindekugel, 24 Colo. App. 100, 131 P. 789.)

GIVENS, J. Lee, C. J., Varian and McNaughton, JJ., and Koelsch, D. J., concur.

OPINION

GIVENS, J.

Respondent sued appellant, a Carey Act operating company, to recover damages for failure to deliver water for irrigation. A jury returned a verdict in favor of appellant. A new trial was granted on the theory that three instructions, enumerated hereafter, given by the court, were erroneous. The appeal is from the order granting a new trial. The questioned instructions given were as follows:

(3) "You are instructed, gentlemen of the jury, that the defendant owed the duty to the plaintiff to deliver at his headgate upon his request, at seasonable and reasonable times and in accordance with the general plan of water delivery by the company, the amount of water which plaintiff was entitled to receive through the system of the Company for the lands in question. And that defendant owed to the plaintiff the further duty of delivering such water in such reasonable quantities and with such a reasonable constant flow as would enable plaintiff to fairly utilize the same. And if you find from the evidence that defendant negligently or wrongfully failed in the performance of either of these duties and plaintiff was damaged as a result thereof, then defendant is liable for such damage.

"Proof of failure to deliver or delivery at irregular times and in irregular manner is prima facie proof of negligence."

(4) "The defendant is only required to exercise ordinary care and diligence in operating the irrigation system in question, and if it is shown by the evidence that the defendant did not fail to exercise ordinary care and diligence, plaintiff may not recover, notwithstanding the fact that he has, in fact, sustained damages."

(5) "The plaintiff may not recover in this case if it is shown that the defendant was not guilty of negligence as charged in the complaint, and even though it be proven to the satisfaction of the jury that the plaintiff did not receive all of the water to which he was entitled after July 24, 1928, or that the water received was delivered at irregular times, and in irregular quantities, nevertheless, that fact will not entitle the plaintiff to recovery, if it be shown that the failure of plaintiff to receive the water to which he is entitled at regular times and in regular quantities was not due to the negligence or wrongful act of the defendant."

Respondent urges that the instructions were erroneous because they advised the jury that a general showing of care and diligence in handling the system constituted a good defense to a prima facie showing by appellant of failure to deliver the water. The respondent contends that the defendant could only excuse itself by reason of some specific cause or condition resulting in failure to deliver water which its exercise of reasonable care and diligence could not prevent, and tries to make much of the contention that appellant's theory of the case was that it sounded in tort and that the instructions were along that line, whereas respondent contends plaintiff's theory was that the action was for breach of contract.

The complaint alleged:

"10. That the defendant from and after the 24th day of July, 1928, failed and neglected to deliver to plaintiff, although requested by plaintiff so to do, said 27.47 acre feet of water during the remainder of the season of 1928, for use upon said lands or to deliver any part thereof save and except 13.60 acre feet of water. That during the season of 1928, the delivery of water to plaintiff was at irregular times and in irregular quantities, and that particularly after July 24, 1928, said 13.60 acre feet of water was neglectfully delivered by defendant at such irregular times and in such irregular quantities and the flow thereof so interrupted and variable that plaintiff was unable to secure the full benefit thereof and to properly use the same in the irrigation of said crop."

"11. That on the 24th day of July, 1928, plaintiff's said bean crop was in a growing and flourishing condition; that plaintiff properly and in a good and husbandmanlike manner cultivated, cared for, irrigated to the extent...