Rhodes v. Weigand, 10808

• Decision Date: 07 June 1965
• Docket Number: No. 10808,10808
• Parties: Weston PHODES and Edward O'Hare, Plaintiffs and Respondents, v. Samuel WEIGAND, Defendant and Appellant.
• Court: Montana Supreme Court

Page 588

402 P.2d 588

145 Mont. 542

Weston PHODES and Edward O'Hare, Plaintiffs and Respondents, v. Samuel WEIGAND, Defendant and Appellant.

No. 10808.

Supreme Court of Montana.

Submitted Feb. 10, 1965.

Decided June 7, 1965.

Peter L. Rapkoch, Lewistown, Leonard H. McKinney (argued), Lewistown, Larry Persson (argued), Hamilton, for appellant.

Smith, Boone & Karlberg, Missoula, Robert B. Brown, Stevensville, Russell E. Smith (argued), Missoula, for respondents.

DOYLE, Justice.

This litigation was commenced in the district court of Ravalli County, on September 21, 1962, by the plaintiffs, hereinafter designated respondents, obtaining a temporary restraining order and order to show cause against the defendant, hereinafter designated appellant. It was claimed that appellant was obstructing the waters of Birch Creek Drain Ditch and that the impounded waters were backing up on respondents' land precluding the respondents from working their crops.

The record discloses that respondent Rhodes was purchasing the 180 acres from respondent O'Hare under a contract for deed.

It was further alleged and agreed that the appellant was the owner in fee of approximately 88 acres lying west of respondents' realty and the two properties were divided by the tracks of the Northern Pacific Railway and Montana East Side Highway No. 269.

Both tracts of land were highly developed agricultural farms, growing sugar beets, grain and alfalfa.

It further appears that the respondents' property slopes toward the west, east and north and that the lands of the appellant are from one to two feet higher than that of the respondents.

In the year 1945, a ditch was constructed known as Birch Creek Drain Ditch to the south of respondents' land to carry away the surplus water on the lands owned by the ditch constructors. This ditch runs in a generally south to north direction along the west side of respondents' property.

The appellant installed a water check in the Birch Creek Drain Ditch on the Southeast corner of his land, which when closed obstructs the flow of the water and caused the water to back up and flood the respondents' land for approximately one-half mile, by raising the water level from two to three feet; that the waters of this drain ditch when so obstructed would seep into the respondents' fields raising the water level on this land which precluded respondents from harvesting growing crops and operating their farm machinery.

Prior to the year 1962, respondents would notify appellant of the flooding situation and appellant would open the gate on the water check and stop the seepage and flooding of the respondents' lands.

The record discloses that on September 19, 1962, respondent O'Hare notified the appellant that he was again being flooded and requested appellant to open the check gate which appellant refused to do. It would seem pertinent to observe the testimony of the appellant on this date, as he stated: 'He and Mr. O'Hare broke diplomatic relations.'

Notwithstanding the apparent animosity between the parties litigant, their respective counsel entered into a written stipulation on May 1, 1963, at the beginning of the 1963 growing season, which provided that the appellant could obstruct the waters of Birch Creek Drain Ditch for a seventy-two hour period and then remove the obstruction for the ensuing 72 hours.

Appellant filed his answer containing general denials and further pleaded the separate defense of laches, the statutes of limitation, under sections 93-2605, 93-2607 and 93-2613, R.C.M.1947, and alleged title by prescriptive right under section 67-1203, R.C.M.1947.

The cause was tried before the Honorable George J. Allen as presiding judge on August 8, 1963, at Hamilton, Montana.

After the taking of testimony and admission of exhibits, the trial court on September 23, 196o, found all of the issues for the respondents, but did provide for the appellant to take such water as he was entitled to from the Birch Creek Drain Ditch for irrigation, but to refrain from interference with the free flow of water which would damage the lands of the respondents.

It is from this judgment that appellant appeals and cites six specifications of error.

The first specification of error concerns the testimony of witness Homer Benson, a registered civil engineer and for twenty years county surveyor of Ravalli County.

Mr. Benson prepared a scale map of all of the lands and ditches in the controversy which was admitted into evidence by stipulation. Mr. Benson then testified as to four test holes dug on respondents' land, lined with a six inch pipe to prevent cavein. The witness then took an assumed elevation or bench mark figure of 100 at the top of the dam at the check gate and using this figure gave figures using this point as reference for relative elevation. Test hole No. 1 was 95.05 feet with reference to the assumed bench mark and was approximately 1,100 feet due east of appellant's check gate contrasted to the 97.19 elevation at the check dam. The witness then testified as to the other three test holes and their elevations, all of which were lower than the check gate from one to three feet.

Respondents then offered in evidence an engineering log-sheet which gave the readings of water levels from May 16, 1963, to August 7, 1963, of all the test holes and other pertinent locations. The appellant objected to this datum sheet exhibit prepared by the witness, on the ground that it had no bearing on any of the issues.

This testimony was in fact the foundation of the litigation.

As a general proposition, any fact which makes probable the existence of another fact in controversy is relevant to prove the disputed fact, which is the situation here.

The discretion of the trial court as to the admissibility of collateral testimony is entitled to much consideration. In the limited sphere above-recited, the testimony was admissible to assist in a determination founded on truth.

In Brion v. Brown, 135 Mont. 356, 363, 340 P.2d 539, 543, this court stated:

"The rules of logic are called into operation to determine the question of relevancy; and it may be said, generally, that whatever naturally and logically tends to establish a fact in issue is relevant * * *.' 1 Jones on Evidence, 5th ed., Sec. 151, p. 270.'

In Richardson v. Farmers Union Oil Co., 131 Mont. 535, 312 P.2d 134, cited by appellant, this court said:

'* * * it appears to us that where the inference is permitted to show a previous condition the foundation must show that the substance was in the same state or condition at a time not too remote, and that the nature of the substance is constant.'

In the Richardson case, supra, the substance was an easily ignited petroleum product in contradistinction to the substance of earth and water. Porosity of land will not change in a year, neither will land elevation such as presented here. It is axiomatic that water will always seek its own level.

In Newman v. Bitter Root Irrigation Dist., 95 Mont. 521, 530, 28 P.2d 195, 197, in a somewhat similar situation this court said:

'Defendant contends that, since plaintiffs' evidence shows that the seepage causing the slides prior to May 13 was 50 feet or more from the west bank of its canal and not from the banks or bottom thereof, it does not show that the seepage came from its canal. As above noted, it was shown that the seepage appeared only when there was water in defendant's canal. There was none before defendant's canal was constructed and none until water was turned into it. These circumstances were sufficient to go to the jury on the question as to where the seepage came from. Defendant alleges in its answer that it came from the irrigated lands to the east. If it can produce evidence to that effect, the question becomes one of fact for the jury. Plaintiffs produced sufficient circumstantial evidence to show that it came from defendant's canal to make of it a jury question.'

Bolstering the testimony of Mr. Benson there was further proof as to the excess water on respondents' property.

Bisecting the respondents' north 180 acres running south and north is a drainage ditch built by respondent in 1936 and named O'Hare Drain Ditch. This ditch is utilized to drain surplus water from the property.

Appellant testified that the O'Hare ditch was weed-choked and fouled to such a degree as to negate the ditch draining waste water, this raised a conflict in the testimony.

Mr. N. W. Blindauer, a registered civil engineer who for four years was county surveyor of Ravalli County and for five years was manager and engineer for the Bitterroot Irrigation District testifying for respondents, stated that in the year 1942 he made a complete study...