Springer Ditch Co. v. Wright

• Citation: 31 N.M. 457,247 P. 270
• Decision Date: 21 September 1925
• Docket Number: No. 2743.,2743.
• Parties: SPRINGER DITCH CO.v.WRIGHT et al.
• Court: New Mexico Supreme Court

31 N.M. 457

247 P. 270

SPRINGER DITCH CO.

v.WRIGHT et al.

No. 2743.

Supreme Court of New Mexico.

Sept. 21, 1925.Rehearing Denied June 26, 1926.

Syllabus by the Court.

Alleged errors unavailable, if not brought to attention of trial court.

A party is precluded from objecting in this court to omissions and uncertainties in the findings, if he has failed to request specific findings under section 4197, Code 1915.

Complaint held to be sufficient to sustain damages as against motion to strike.

Motions to make more definite and certain are addressed to discretion of trial court.

Findings of negligence held supported by substantial evidence.

A written statement of items and amounts of damage given to defendant by plaintiff, resulting from pending negotiations for settlement, and intended merely as an offer of settlement, not an admission, and properly excluded.

In suit for damages by flood to growing crop of hay, where the hay grew and matured, but could not be gathered because of flood, substantial evidence as to the quantity of such hay is furnished by the estimates of witnesses having knowledge of the facts.

In arriving at damages to real estate by flood, evidence of the cost of restoration of permanent improvements destroyed not incompetent.

Error assigned upon measure of damages not considered, if appellant failed to bring his theory to attention of trial court.

On Motion for Rehearing.

In suit for numerous items of damage, the court having undertaken to make specific findings, but having found generally as to the amount of damages, and not having been requested to find specially as to the several items, error assigned that double damages have resulted because of inclusion of some items twice is not available, unless it appears affirmatively without complete review as in a trial de novo.

A theory of law not brought in some manner to the attention of the trial court will not be considered on appeal.

Error to District Court, Colfax County; Leib, Judge.

Action by Douglas Wright and Mrytle Wright against the Springer Ditch Company. Judgment for plaintiffs, and defendant brings error. Affirmed.

In action for damages through breaking of irrigation reservoir, part of complaint relating to plaintiff's inability to obtain water for crops because of destruction of seepage ditch held sufficient as against motion to strike.

W. R. Holly, of Hollywood, Cal., F. S. Merriau, of Raton, and Malcolm Lindsey, of Denver, Colo., for plaintiff in error.

Crampton & Darden, of Raton, for defendants in error.

WATSON, J.

Referring to the parties according to their status in the court below, defendant (appellant) owned an irrigation reservoir containing a body of water stored behind an earthen dam with concrete facing and coping, and plaintiffs (appellees) owned, immediately below said reservoir, certain lands, fully described in the complaint, “and a certain seepage ditch, and all the other improvements situated on said lands, and the hay, vega, and other crops growing upon said lands.” The dam gave way, causing the flooding of plaintiffs' property, for which injury they recovered judgment for damages in the sum of $7,325, which judgment is here on writ of error sued out by defendant.

The complaint alleged that the proximate and efficient cause of the breaking of the dam was the negligence of the defendant in certain respects set forth. The resulting damage was set forth thus:

“* * * A portion of the waters, silt, concrete and débris therein and therefrom were discharged upon a portion of the above described lands of the plaintiffs, and the lands, real estate, property and seepage ditch of the plaintiffs were destroyed, injured and damaged in the following particulars, to wit:

Five hundred (500) tons of hay of the value of $10.00 per ton, were destroyed, to the damage of plaintiffs in the sum of $5,000.

Said seepage ditch was washed out and injured and destroyed, to the damage of plaintiffs in the sum of $500.

Mud, gravel, concrete and débris were deposited and spread upon the surface of said lands, to the damage of the plaintiffs in the sum of $500.

150 acres of hay land was flooded and injured and rendered valueless until burned off, to the damage of plaintiffs, in the sum of $500.

A portion of said lands of plaintiffs were soaked and waterlogged, to the damage of plaintiffs, in the sum of $1,000.

The garden on said lands was destroyed, to the damage of plaintiffs, in the sum of $50.

One bridge and certain fences on said lands were washed out, torn away, and destroyed, to the damage of plaintiffs in the sum of $500.

On account of the destruction of said seepage ditch, plaintiffs were unable to obtain water for the proper irrigation of 30 acres of corn, to the damage of the plaintiffs in the sum of $500.

And 30 acres of oats to the damage of plaintiffs in the sum of $150.”

[1] There are 36 assignments of error which defendant discusses under 14 points. A large number of these alleged errors are unavailable, and many of the points cannot be considered, because counsel did not take proper steps in the court below to reserve them for review. A large portion of the argument is devoted to the effort to escape our uniform refusal to consider alleged errors not brought in some manner to the attention of the trial court. Our decisions to that effect are too numerous to cite, and are familiar to every practitioner.

[2] Defendant also complains frequently of omissions, uncertainties, and other defects in the findings. The remedy for such situation was in counsel's hands. Under section 4197, Code of 1915, it is the duty of the court to make specific findings of ultimate facts, and it is error to refuse to do so. Luna v. Cole R. Co., 16 N. M. 71, 113 P. 831; Morrow v. Martinez, 27 N. M. 354, 200 P. 1071; Merrick v. Deering, 30 N. M. ---, 236 P. 735. But if counsel do not see fit to request the performance of this duty, they waive the right. Radcliffe v. Chavez, 15 N. M. 258, 110 P. 699.

[3] Defendant interposed a motion to strike, directed to the quoted items of damage relating to plaintiffs' inability, after the breaking of the dam, to obtain water for the irrigation of corn and oats, because of the destruction of the seepage ditch. Its grounds were: (1) That the complaint does not show that the plaintiffs ever had any water right appurtenant to said property; and (2) that the complaint does not show that water would have been received for the same even if the seepage ditch had not been destroyed. The complaint alleges the ownership of a water right; its utilization by means of the seepage ditch, the destruction of which, as is alleged, rendered it impossible to irrigate the corn and oats. Counsel assume, as the basis of argument, that the complaint fails to state facts sufficient to sustain damages for injury to the corn and oat crops. Passing the question whether the point is properly raised, we think the assumption unwarranted. In any event, as hereinafter shown, it is not clear that the judgment includes any allowance for this item.

[4] By motion to make more definite and certain, defendant sought a more detailed specification of the extent and nature of the injuries for which damages were claimed. Such a motion is addressed to the discretion of the trial court. 4 C. J. 801. No abuse of such discretion is here shown.

[5] There is considerable discussion in the briefs as to the rule of liability applicable to one who stores waters for irrigation, and as to whether the doctrine of res ipsa loquitur may be invoked. We find, however, that the pleadings are framed, the trial proceeded, and the judgment is based, upon the theory of the negligence of the defendant in failing to use ordinary care in inspecting and maintaining its dam. The judgment is based upon findings of specific facts which support the conclusion of negligence. Under the familiar rule, such findings are conclusive upon us, as we consider them supported by substantial evidence.

[6] On cross-examination of plaintiff Douglas Wright certain facts were brought out upon which defendant relied as admissions by plaintiffs with respect to the nature and extent of damages. It appears that some time after the breaking of the dam plaintiffs presented to defendant a writing in the language following:

“Mr. Fred Geyer, Sect. Springer Ditch Co.: Below is a list of damages I consider due me by the breaking of the Springer Lake dam June 2nd and the flood passing over my place: 12 large poles washed away, $36.00. Depositing silt on hay meadow, $200.00. Destruction of hay by washing it down until I was unable to cut same, $1200.00.

1,200 Respt 200 D. G. Wright 36 Springer, N. Mex.”

It also appears that plaintiff Douglas Wright had a conversation with representatives of the defendant regarding the damages. It seems to be agreed that on that occasion defendant's representatives came to plaintiff Douglas Wright and told him that they were there for the purpose of settling the damages, and that whatever statement was made by plaintiff Douglas Wright was made to them in answer to their question. There is conflict as to whether the question and the answer were directed to the amount of the damages or to the amount plaintiffs would accept in settlement. The amount then mentioned was either $1,500 or $1,535.

The evidence, both as to the written statement and as to the conversation, was objected to as not tending to show admissions made by the party, but as showing merely offers to settle or compromise. The court, expressing grave doubts as to its competency, admitted the evidence, holding, in substance, that before ruling he must hear all the evidence bearing upon the question, and stating that he would cover the point in the findings.

Among the findings appears No. 14 in this language:

“That the conversations and each of them had between the plaintiff, Douglas G. Wright, and the officers, agents and servants of the defendant in reference to and as to the amount of the...