Stott By and Through Dougall v. Finney
| Decision Date | 22 December 1997 |
| Docket Number | No. 23451,23451 |
| Citation | 130 Idaho 894,950 P.2d 709 |
| Parties | Mildred STOTT By and Through her legal guardian, Joyce DOUGALL, Plaintiff-Appellant, v. Paul FINNEY and Sue Finney, husband and wife, Defendants-Respondents. Coeur d'Alene, October 1997 Term |
| Court | Idaho Supreme Court |
Watson Law Offices, Coeur d'Alene, for appellant. Roland D. Watson argued.
Huppin, Ewing, Anderson & Paul, P.S., Coeur d'Alene, for respondents. Irving "Buddy" Paul argued.
This is an appeal in an action for the recovery of damages to real property. The plaintiff, Mildred Stott, alleged that her property was flooded as a result of the failure of a dam constructed by her neighbors, Paul and Sue Finney, on their land which was upstream from Stott's property. A jury rendered its verdict for the Finneys. Stott moved for a judgment notwithstanding the verdict or for a new trial. The district court denied Stott's motions, and Stott has appealed. We affirm.
Mildred Stott owns real property which includes a seasonal tributary of Carlin Creek in Kootenai County. The Finneys own property above and upstream from Stott's land. During the fall of 1992, the Finneys constructed an earthen dam on their property to store water for local wildlife habitat and for firefighting purposes. On March 24, 1993, the earthen dam failed. Stott claimed that the dam's failure increased the normal peak stream flow that ran through the drainage, causing Stott's property to flood when an earth slide blocked off Carlin Creek.
On May 5, 1994, Stott, by and through her legal guardian, Joyce Dougall, filed a complaint against the Finneys alleging that the Finneys' negligent construction of the earthen dam caused damage to Stott's property. The Finneys denied this allegation, taking the position that any damage Stott suffered was not the result of the failure of their dam, but was the result of the accumulation of debris on Stott's property caused by a logging road on her land that traversed the creek below Finneys' dam.
At the conclusion of a four-day jury trial in August 1996, the district court instructed the jury as to Stott's negligence claim, but refused to give the jury instructions regarding trespass, nuisance and negligence per se as theories for Stott's recovery of damages. Subsequently, the jury returned a verdict finding there was no negligence on the part of the Finneys that was a proximate cause of the occurrence. Stott filed a motion for judgment notwithstanding the verdict or for a new trial. The district court denied Stott's motions. Stott appealed.
Stott asserts that (1) the trial court erred in refusing to allow Stott's claims of trespass, nuisance, and negligence per se that existed with regard to the dam's failure; (2) the trial court erred in allowing testimony and photographs of other nonrelated washouts in North Idaho; (3) the trial court erred in refusing to admit in evidence Stott's Exhibit # 26 which consisted of a letter from the Director of the Idaho Department of Fish and Game to the Director of the Idaho Department of Water Resources; and (4) the trial court erred in allowing hypothetical testimony from a witness who was asked if he would spend $70,000 of his own money to fix $7,000 worth of property.
We first address Stott's assertion that the district court erred in failing to give proposed instructions concerning recovery of damages on the theories of trespass and nuisance. To establish error for failure to give an instruction pursuant to I.R.C.P. 51(a), it must be shown at a minimum that: the instruction was not argued against by the appellant; the instruction was a correct statement of Idaho law; and the failure to instruct was assigned as error on appeal. Carpenter v. Double R Cattle Co., Inc., 108 Idaho 602, 606, 701 P.2d 222, 224 (1985).
Here, the district court viewed this action purely as a negligence case and concluded that trespass and nuisance grounds were not available to establish liability, under Idaho law. The district court was correct in this regard. In Kunz v. Utah Power & Light Co., 117 Idaho 901, 792 P.2d 926 (1990), this Court held that non-negligence based theories of liability, such as strict liability, trespass, or private nuisance are not recognized when water is discharged from an artificial storage system into the natural channel. When a property owner alleges damage to streambeds due to discharge from an artificial body of water on adjacent property, the proper theory of recovery is negligence rather than nuisance, trespass, or strict liability. Id. at 903, 792 P.2d at 928. Because of the importance to Idaho's agricultural economy, operators of irrigation ditches and canals have long been held liable only for their actions that are negligent. Id. at 904, 906, 792 P.2d at 929, 931; see e.g., Stephenson v. Pioneer Irrigation Dist., 49 Idaho 189, 194, 288 P. 421, 422 (1930); Burt v. Farmers' Co-operative Irrigation Co., 30 Idaho 752, 767, 168 P. 1078, 1082 (1917). In Kunz, the Court extended this principle to reservoir and dam operators because they, like the operators of irrigation canals, are an integral part of the In the present case, we conclude the policy reasons for limiting liability of dam operators are implicated just as strongly with regard to the Finneys' construction of the earthen dam to provide wildlife habitat and a source of water for firefighting purposes. It has been the policy of this State to secure the maximum use and benefit of its water resources. Id. The artificial storage of water for such beneficial uses is consistent with the reasoning in Kunz; the Finneys can only be liable for a loss caused by their negligence in constructing and operating the artificial water storage system. Inasmuch as negligence was the only available cause of action in this case, the district court did not err in rejecting Stott's argument that she should be allowed to recover on theories of trespass or nuisance.
artificial water storage and delivery systems essential to Idaho's economic well-being. Kunz, 117 Idaho at 904, 792 P.2d at 929. These artificial water storage systems serve other beneficial uses such as flood control, power generation, recreation, and providing beneficial...To continue reading
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