Shrives v. Talbot

• Decision Date: 12 January 1965
• Docket Number: No. 9440,9440
• Citation: 88 Idaho 209,398 P.2d 448
• Parties: Frank L. SHRIVES and Avis E. Shrives, his wife, Plaintiffs-Respondents, v. Thomas Lavon TALBOT and Nellie R. Talbot, his wife, Defendants-Appellants.
• Court: Idaho Supreme Court

Page 448

398 P.2d 448

88 Idaho 209

Frank L. SHRIVES and Avis E. Shrives, his wife, Plaintiffs-Respondents, v. Thomas Lavon TALBOT and Nellie R. Talbot, his wife, Defendants-Appellants.

No. 9440.

Supreme Court of Idaho.

Jan. 12, 1965.

Motion to Dismiss Appeal Denied Feb. 11, 1965.

As Revised on Denial of Rehearing Feb. 11, 1965.

Racine, Huntley & Olson, Pocatello, for appellants.

Gee, Hargraves & Armstrong, Pocatello, for respondents.

TAYLOR, Justice.

March 17, 1961, plaintiffs (respondents) sold to defendants (appellants) certain farm property in Franklin county (hereinafter designated Weston property) and executed and delivered their warranty deed conveying and property to defendants. The purchase price was $40,000. In payment defendants executed and delivered their warranty deed conveying to plaintiffs a smaller farm owned by them in Franklin county (hereinafter designated Clifton property) in which defendants had an equity of $11,278.97, above an incumbrance, which plaintiffs assumed. The balance of the purchase price, $28,721.03, was paid by defendants' promissory note, secured by their mortgage incumbering the property conveyed to defendants by plaintiffs. The note bore interest at 5 1/2 per centum per annum. The first payment to be made thereon was due January 15, 1962, and was for interest accruing to that date. The principal was payable in annual installments of $1,000 plus interest, commencing January 15, 1963. Delivery of the respective properties accompanied the transaction. Other than the deeds, and the note and mortgage, no contract embodying the transaction was made.

The payment due January 15, 1962, was not made, and the entire principal and accrued interest became due. Plaintiffs commenced this action for recovery on the note and foreclosure of the mortgage, April 11, 1962.

In their answer defendants allege they were induced to enter into the transaction and to execute and deliver the note and mortgage sought to be foreclosed, by false and fraudulent representations made to them by plaintiff Frank L. Shrives. The representations which were alleged to have been falsely made are set out in appellants' brief as follows:

'1. That Respondents owned a ditch right of way across the lands of one Clyde Nielsen;

'2. That the house on the Weston property was in a liveable condition and in a state of good repair;

'3. That Respondents owned certain fences, gates, water trough and water heater;

'4. That Respondents had raised, and Appellants could raise, fall wheat on 120 acres of the land on the bench or that the 120 acres could be watered by means of a sprinkler system which could be put in in the spring and drain under the hill, and any crop could be raised thereon;

'5. That the farm had plenty of water; and

'6. That Respondents had good, clear title to the land.'

Defendants also filed a counterclaim for damages alleged to have been suffered by them by reason of the fraud.

After trial to the court, findings, conclusions and judgment were entered for the plaintiffs and motion for a new trial was denied. Defendants brought this appeal from the judgment and the order denying a new trial.

The record does not show that Shrives made any specific representation as to the condition of the house. Necessary repairs thereto and to the water heater were made or offered to be made by plaintiffs. Neither does the record disclose that specific representations were made as to the ownership of the items mentioned in paragraph 3, supra. Defendants testified that Shrives told them there was plenty of water for the irrigation of the land. Shrives testified he told them only that the water available was represented by 40 shares in the Twin Lakes Canal Company and 6.87 shares in the Weston Creek Irrigation Company which was appurtenant to the land. Those shares were conveyed to defendants along with the land by plaintiffs' warranty deed. The water represented by those shares was used only upon the forty acre tract upon which the house and outbuildings were located. Defendants experienced a shortage of water on the irrigated tract during the irrigation season of 1961, which resulted in a poor yield by reason of which defendants were unable to make the payment of interest due plaintiffs in January, 1962. However, it appears from the record that the shortage of water was due in part to the fact that 1961 was a year of comparative drouth in the area, and in part to the difficulty defendants experienced in getting the water through the ditch on the neighboring farm of Clyde Nielsen. The use of the ditch was 'rotated.' When it was Talbot's turn to irrigate, he, or his son, was required to go up the ditch, remove dams and fill cuts in the banks made by upper users. The filled cuts sometimes broke out, allowing the water to escape.

Defendants testified that Shrives represented to them that a right to carry water through the ditch upon Mr. Nielsen's land was appurtenant to the property conveyed. Shrives testified that the term 'right of way' was never mentioned; that he told defendants the water would come through the Nielsen ditch and that it was a 'common' ditch. Such a representation even though limited to the terms admitted by Shrives was such as to lead defendants to believe that a carrying right through the Nielsen ditch was appurtenant to the land. However, Nielsen (Shrives' brother-in-law) testified that in March, 1961, prior to the transaction between the parties hereto, Shrives brought defendant Talbot to Nielsen's home and that he, Nielsen, told Talbot that the ditch 'was my private head ditch to my land' and that the water for the Weston land would come through that ditch subject to the same conditions as had previously been imposed upon such use; that is, that Talbot would be required to help maintain the ditch and to comply with other conditions theretofore agreed upon. This testimony on the part of Nielsen was not denied by defendants and, if true, was sufficient to put them on notice that no carrying right for irrigation water was appurtenant to the land.

The Weston property was divided into two parcels. The larger tract of some 200 acres was traversed by a drain which led from a spring on a neighboring farm. Some of the land below the drain was 'subirrigated' by seepage. Although some crops had been grown thereon, its principal use was for pasturage. There were 120 acres on a bench above the drain. Defendants testified that on the occasion when Shrives was showing them this bench land, he told them that fall wheat had been grown thereon; that they could raise crops of fall wheat on that ground; and that they could put a sprinkler system in, drawing water from the drain ditch, and could raise any kind of crop on that land that they desired.

Shrives testified that he was asked only if we had raised fall wheat on that land and that he answered, 'Yes'; that as to sprinkling the land, he was asked only whether it would be feasible to irrigate that land by means of a sprinkler system, drawing water from the drain; to which he answered, 'To the best of my knowledge it could be done.'

Plaintiffs' witness Benson, who as plaintiffs' tenant had farmed the Weston property the five years immediately preceding the transaction here involved, testified on cross-examination that he had attempted to install a sprinkler system to use water from the drain but was prevented from doing so by Mr. Thompson, the neighbor who claimed the ownership of the water in the drain.

Mr. Talbot testified that while showing defendant the land Shrives said, 'That drain is his' and,

'The drain could be stopped off and a sprinkling system be put in there and you could sprinkle the whole thing.'

By 'the whole thing' he referred to the 120 acres of bench land.

Mrs. Talbot testified that while showing the bench land, Shrives said, 'the spring was his' and 'We put the drain in ourselves. That's ours.' That by 'we', she understood him to refer to 'his father and him' and, referring to the 'dry farm up on top of the hill',

'Mr. Shrives said, 'You can raise good Fall wheat here.' Then he went on to say that if we would put a sprinkling system into that * * * spring and the drain that all of the land could be watered and we could raise any kind of crops we wanted.'

Mrs. Talbot further testified that in the spring of 1961 she and her husband planned to irrigate the upper land by means of a sprinkler system, drawing the water from the drain, but were advised they could not do so.

The statements made by Shrives to defendants concerning the feasibility of drawing water from the drain for the irrigation of the bench land was such as to lead them to believe that the water flowing in the drain could be used upon the land through which it flowed.

The court found:

'VI Plaintiffs are residents of the State of Oregon and for many years have not lived on the property they were selling. Defendants were aware of these facts, and from their discussions knew that the Plaintiffs had not been operating the property. Defendants are residents of Franklin County, Idaho and have lived in the area for many years. They were introduced to preceding tenants of the Plaintiffs' property and were free to make any inquiry they desired concerning said property. Defendants were aware that Plaintiffs did not have intimate or firsthand knowledge of the histories of crop raising and condition of premises for several years preceding the sale.'

'X That the plaintiffs did not make any misrepresentations as to the condition of the home, the premises, the history of the crops, the water or rights of way; that defendants were aware that plaintiffs had not occupied or operated the premises for several years prior to the sale; that the house was in a reasonably livable condition when transferred by plaintiffs to defendants; that any lack of water for the growing of crops was occasioned either by a general drought condition or by defendants' own conduct in not...