Savage Lateral Ditch Water Users Ass'n v. Pulley

• Decision Date: 20 October 1993
• Docket Number: No. 19616,19616
• Citation: 869 P.2d 554,125 Idaho 237
• Parties: SAVAGE LATERAL DITCH WATER USERS ASSOCIATION; George A. and Billie Pulley; George W. and Elizabeth Stephens; Thomas and Karen Helzer; Norman and Vicki Alicea; Charles W. and Twyla Jones; Ronald L. and Debra L. Jordan; Johnson E. Smith; John Savage; and Kenneth and Wanda Van Dorn, Plaintiffs-Respondents, v. Toni E. PULLEY, a single woman; and Jerry Pulley, Defendants-Appellants, v. SAND HOLLOW DITCH CO., LTD.; and Last Chance Ditch Company, Ltd., Third-party Defendants-Respondents. Boise, February 1993 Term
• Court: Idaho Supreme Court

Page 554

869 P.2d 554

125 Idaho 237

SAVAGE LATERAL DITCH WATER USERS ASSOCIATION; George A. and Billie Pulley; George W. and Elizabeth Stephens; Thomas and Karen Helzer; Norman and Vicki Alicea; Charles W. and Twyla Jones; Ronald L. and Debra L. Jordan; Johnson E. Smith; John Savage; and Kenneth and Wanda Van Dorn, Plaintiffs-Respondents, v.Toni E. PULLEY, a single woman; and Jerry Pulley, Defendants-Appellants, v.SAND HOLLOW DITCH CO., LTD.; and Last Chance Ditch Company, Ltd., Third-party Defendants-Respondents.

No. 19616.

Supreme Court of Idaho,

Boise, February 1993 Term.

Oct. 20, 1993.

Rehearing Denied March 25, 1994.

Givens, Pursley, Webb & Huntley, Boise, for appellants.Robert C. Huntley, Jr., argued.

Hawley, Troxell, Ennis & Hawley, Boise, for respondents Savage Lateral Ditch Water Users Ass'n et al.Albert P. Barker, argued.

Louie Gorrono, Emmett, for respondentsSand Hollow Ditch Co., Ltd.

Park, Costello & Burkett, Caldwell, for respondentsVan Dorn.Sergio A. Guitierrez, argued.

SCHILLING, Judge Pro Tem.

I.

BACKGROUND AND PRIOR PROCEEDINGS.

RespondentLast Chance Ditch Company possesses water rights in the Payette River.Its water is distributed by irrigation canals and lateral ditches, one of which is called Sand Hollow Ditch.RespondentSand Hollow Ditch Company is responsible for maintenance of some lateral canals flowing off of Sand Hollow Ditch, including the Savage Lateral Ditch.The Savage Lateral is located near the end of Sand Hollow Ditch, not far from where Sand Hollow Ditch empties back into the Payette River.

From as early as the 1930s, the Savage Lateral Ditch ran southwest near railroad tracks across the Van Dorn property and onto the Levers Estate (referred to herein as the "Pulley property"), within which it veered northwest toward George Pulley's property.At the point on the Pulley property in which the ditch turned northwest, another ditch called the Helzer Ditch originated and continued southwest onto the property of Thomas and Karen Helzer.From at least the 1940s, the Savage Lateral Ditch has been used to irrigate approximately 417 acres of farm and pasture land southwest of Emmett, Idaho.

In June of 1988, appellantToni Pulley acquired the Pulley property: 150 acres of farm land near Emmett, Idaho, through which the Savage Lateral Ditch runs.Approximately eighty acres of the land is located north of the Savage Lateral Ditch; the remaining seventy acres are located south of that ditch.Toni Pulley orally leased this land to her father, appellantJerry Pulley, in exchange for his payment of property taxes, irrigation water assessments and any improvements to the property.

In 1989, Jerry Pulley relocated the Savage Lateral Ditch as it ran through the Pulley property.Shortly after entering the Pulley property, the ditch was reconstructed to turn due north and run along the eastern boundary of the Pulley property (the western boundary of the Van Dorn property) until it reached the Dittman's property to the north.At that point, the relocated ditch again made a turn due west across the northern edge of the Pulley property until it reached the northeastern corner of George Pulley's property.The reconstructed ditch again turned, this time south along the western boundary of the Pulley property for a short distance, and then finally angled back into the original Savage Lateral Ditch as it entered the northeastern portion of George Pulley's land.

Jerry Pulley also leveled the lower seventy acres of the Pulley property, which destroyed the Helzer Ditch.The Helzer Ditch had not been used for irrigation of the Helzer property for the four years during which the Helzers owned the property.

Another lateral called the Dittman Ditch runs through the northern eighty acres of the Pulley property, and is used to irrigate the northern portion of that property.The lower seventy acres had been irrigated through use of the Savage Lateral.

During the 1989 irrigation season and after relocation of the Savage Lateral Ditch by Jerry Pulley, the downstream water users began to experience a decrease in the historic flow of water in the ditch.The downstream users were forced to increasingly rotate ditch use due to the decrease in flow.In May of 1990, seven users representing 322.3 of the 417 acres served by the Savage Lateral formed the Savage Lateral Ditch Water Users Association(SLDWUA).The SLDWUA filed for declaratory and injunctive relief against the appellants Pulley on June 29, 1990, alleging a violation of Idaho Code § 42-1207.The primary relief requested by the Association and its users was that the Savage Lateral Ditch be returned to its original location and elevation as it ran through the Pulley property.The Helzers, as members of the SLDWUA, requested that the Helzer Ditch be returned to its original condition.

The Van Dorns joined in the complaint, also requesting injunctive relief as well as compensation for damages to their hay field during 1989 and 1990 allegedly caused by relocation of the ditch by Jerry Pulley.

Appellants Pulley brought a third-party complaint against Sand Hollow Ditch Company and Last Chance Ditch Company requesting injunctive and declaratory relief.

After a court trial, the trial court conducted a view of the property and walked the entire length of the Savage Lateral.The court issued its findings of fact, conclusions of law and judgments on June 4, 1991, ruling in favor of the respondents.The trial court held that the relocation and reconstruction of the Savage Lateral by Jerry Pulley, acting as agent of Toni Pulley, impeded the historic flow of water through the ditch in violation of I.C. § 42-1207.The court ordered that the Savage Lateral Ditch be relocated to its original location and elevation, that the Helzer Ditch be restored to its original condition, and that Toni and Jerry Pulley refrain from using water from the Savage Lateral in excess of their historic share based on irrigation of the southern seventy acres of their property.

The district court held that the respondentsVan Dorn were entitled to damages for injury to their hay field in the amount of $6,204.45.Both SLDWUA and the Van Dorns were awarded costs as prevailing parties.The court further concluded that there was no factual basis for the appellants' third-party claims against Sand Hollow Ditch Company or Last Chance Ditch Company.It awarded both companies court costs and attorney's fees.

Appellants filed a Rule 59(e) motion to alter or amend the findings of fact and conclusions of law of the trial court on July 9, 1991.In support of this motion, they submitted the affidavits of Sherl Chapman and Jerry Pulley, which the court considered only with respect to contempt sanctions and the amount of time that the Pulleys would be given to comply with the injunction.The court denied appellants' motion.

Appellants now appeal from the trial court's findings of fact, conclusions of law and judgments, as well as its ruling on appellants' post-trial motion to alter or amend the judgment, raising the following issues:

(1) Was the permanent injunction improvidently issued because the plaintiffs did not prove their right to an injunction?

(2) Did the district court err by granting an injunction which unduly and unnecessarily infringes upon the appellants' rights?

(3) Did the district court err by refusing to consider, in the exercise of its continuing jurisdiction over the injunction, the affidavits of Sherl Chapman and Jerry Pulley submitted in support of appellants' motion to alter or amend the judgment?

(4) Did the district court err in denying appellants' demands for a jury trial on the issues concerning damages?

(5) Did the district court err in ruling that appellants had a duty to continue an easement for the transport of nine miner's inches of water to the Helzer property, when neither the Helzers nor their predecessor in interest had used the Savage Lateral to irrigate their land for twenty-one years?

(6) Did the district court err in ruling that appellants presented no factual basis for their third-party claims against Sand Hollow Ditch Company?¹

Respondents SLDWUA and Sand Hollow Ditch Company have requested attorney fees on appeal.

Findings of fact cannot be set aside on appeal unless they are clearly erroneous, i.e. not supported by substantial, competent evidence.Rice v. Hill City Stock Yards, Co., 121 Idaho 576, 826 P.2d 1288(1992);Jenkins v. State, Dept. of Water Resources, 103 Idaho 384, 389, 647 P.2d 1256, 1261(1982).An appellate court cannot substitute its opinion of witness' credibility for that of the trier of fact.Alumet v. Bear Lake Grazing Co., 119 Idaho 946, 949, 812 P.2d 253, 256(1991).This standard reflects the deference to be afforded a trial court's unique opportunity to assess and weigh the credibility of the witnesses who appear before it.State v. Tierney, 109 Idaho 474, 476, 708 P.2d 879, 881(1985).

It is only when an issue is one of law that the Court exercises free review of the trial court's decision.Kawai Farms, Inc. v. Longstreet, 121 Idaho 610, 826 P.2d 1322(1992).This appeal raises both issues of fact and of law.

II.PROPRIETY OF INJUNCTIVE RELIEF

The decision to grant injunctive relief rests with the sound discretion of the trial court.O'Boskey v. First Fed. Savs. & Loan Ass'n, 112 Idaho 1002, 1007, 739 P.2d 301, 305(1987);Harris v. Cassia County, 106 Idaho 513, 517, 681 P.2d 988, 992(1984).Appellants argue that there are two primary reasons why the injunction issued by the district court was improper: (1)the plaintiffs' failure to prove the exact amount of water to which they were entitled prevented them from obtaining injunctive relief under I.C. § 42-1207; and (2)the plaintiffs failed to meet their burden of proving that "irreparable harm" would result absent issuance of an injunction.Appellants' arguments concentrate primarily on one injury caused the plaintiffs: the impedance of water...