Stuart v. Noble Ditch Co.

• Decision Date: 02 March 1904
• Citation: 9 Idaho 765,76 P. 255
• Parties: STUART v. NOBLE DITCH COMPANY
• Court: Idaho Supreme Court

76 P. 255

9 Idaho 765

STUART v. NOBLE DITCH COMPANY

Supreme Court of Idaho

March 2, 1904

DAMAGES-WATER DITCH-INSUFFICIENCY OF EVIDENCE-VERDICT-EMPLOYEE-MANAGEMENT-INSTRUCTION.

1. Evidence held insufficient to support the verdict.

2. If the employee of a corporation having the management of an irrigating canal opens a wastegate to relieve the canal of an overplus of water and thereby injures a land owner, the corporation is liable therefor, and it is error to eject evidence of such fact if made an issue in the case.

3. Under the provisions of section 4207, Revised Statutes pleadings must be liberally construed with a view to substantial justice between the parties.

4. It is not error for the court to admit evidence tending to establish a material issue made by the pleadings.

5. A member of the board of directors of a water corporation, who consented to the location, plan and method of the construction of a water canal, cannot recover damages sustained by him by reason of seepage therefrom, until the company had had notice thereof, and a reasonable time thereafter in which to repair such canal.

6. Nor can he recover any damage if it were plain, obvious and readily foreseen that seepage would result from such canal by reason of its location and construction in the manner and method planned.

7. A person may recover for damage sustained by reason of the mismanagement of a canal which damage resulted from defective wastegates, or from opening them to relieve the canal from an over-supply of water, or from neglect in keeping the canal in proper repair.

APPEAL from Canyon County District Court. Honorable George H Stewart, Judge.

Action to recover damages for the careless location and construction of a canal and for the careless mismanagement thereof. Judgment for defendant. Reversed.

Reversed and remanded, with instructions.

Morrison & Pence and Wood & Wilson, for Appellant.

Presumption as to damages: The law will presume damage from the infringement of a legal right. (Webb v. Portland Mfg Co., 3 Sum. 189 F. Cas. No. 17,322; Whipple v. Cumberland Mfg. Co., 2 Story, 661, F. Cas. No. 17,516.) The law presumes damages from a trespass upon realty. (Attwood v. Fricot, 17 Cal. 37, 76 Am. Dec. 567.) Where the evidence shows a violation of plaintiff's right, the law implies actual damage sufficient to sustain an action. (Blanchard v. Burbank, 16 Ill.App. 375.) The impossibility of definitely measuring the damages received by a money standard is no ground for denying pecuniary relief. (Birmingham v. Lewis, 92 Ala. 352, 9 So. 243.) If they cannot be measured by a fixed rule, all facts and circumstances tending to show what they are should be submitted to the jury. (Gilbert v. Kennedy, 22 Mich. 117.) Overflowing lands: In an action for overflowing the lands of the plaintiff by a dam, the plaintiff is entitled to nominal damages if he cannot prove any special. (Dorman v. Ames, 12 Minn. 451; Pastorious v. Fisher, 1 Rawle, 27.) Nominal damages may be recovered for the diversion of a natural watercourse, without proof of actual injury. (Blodgett v. Stone, 60 N.H. 167.) The law implies damage from the act of flowing backwater upon the land of another, and nominal damages at least may be recovered. (Graver v. Sholl, 42 Pa. 58.)

Richards & Haga, for Respondent.

A party who claims compensation for an injury done him must show, as part of his case, not only that he has suffered loss on account of the injury, but also what is the amount of the loss; and the burden of proving both these things is upon him. (Sedgwick on Damages, sec. 170; Orient Min. Co. v. Freckleton, 27 Utah 125, 74 P. 652.) Where the sole question is one of fact and the evidence is conflicting, the finding of the jury will not be disturbed. (Sears v. Flodstrom, 5 Idaho 314, 49 P. 11.) Where there is a substantial conflict in the testimony, the verdict of the jury will not be disturbed on appeal. (Simpson v. Remington, 6 Idaho 681, 59 P. 360.) Where there is a conflict of evidence in a trial before a jury, the appellate court will not disturb the verdict. (Murphy v. Montandon, 4 Idaho 320, 39 P. 195; Simons v. Daly (Idaho), 72 P. 507; Reay v. Butler, 95 Cal. 206, 30 P. 209; Coffln et al. v. Bradbury et al., 3 Idaho 770, 95 Am. St. Rep. 37, 35 P. 715; Hawkins v. Pocatello Water Co., 3 Idaho 766, 35 P. 711.) The directors of a corporation occupy a fiduciary relation toward the stockholders, and are treated by courts of equity as trustees for them. The directors are the trustees and managing partners, and the stockholders are the cestuis que trust. (3 Thompson on Corporation, secs. 4009. 4010, 4104, 4106; Briggs v. Spaulding, 141 U.S. 132, 11 S.Ct. 924, 35 L.Ed. 662; Wallace v. Lincoln Sav. Bank, 89 Tenn. 630, 24 Am. St. Rep. 625, 15 S.W. 448.) Where there is a duty of finding out and knowing, negligent ignorance has the same effect in law as actual knowledge. (3 Thompson on Corporations, sec. 4108; 2 Thompson on Negligence, p. 762.)

SULLIVAN, C. J. Stockslager and Ailshie, JJ., concur.

OPINION

SULLIVAN, C. J.

This is an action to recover damages occasioned by the negligent and unworkmanlike manner in which a certain ditch known as the Noble ditch was constructed and managed. It is alleged in the complaint that great volumes of water in excess of the amount which said canal could or would carry were carelessly and negligently permitted to run through and out of said ditch and large and dangerous lakes and ponds of water formed therefrom upon the lands of the appellant, and that large and dangerous volumes of water were turned in, under and upon the said lands of appellant and made the same swampy, wet and spongy, and caused alkali and other caustics to arise and appear in damaging quantities upon the surface of such land, and also furrowed and tore up the surface of said land and carried debris and foreign deposits in and upon the said land, thereby and by reason of all of which said lands have been rendered incapable of cultivation and their permanent use and profit destroyed to the damage of the appellant in the sum of $ 4,000, and that his crops and labor upon said lands in preparing the same for the crop of 1901 were lost to his damage in the sum of $ 1,000.

The defendant answered denying the allegations of the complaint, and further answering averred that the plaintiff is one of the board of directors of the defendant corporation, which had full charge of the construction of said canal, and that any negligence which there might have been in the construction of the canal was done with the full approval and knowledge of the plaintiff and by the plaintiff as a representative of the defendant. It was further averred in the answer that if said land was injured at all it was by the seepage from an old ditch known as the old Noble ditch, and by the careless and negligent manner in which the plaintiff had irrigated the said land by reason of over-irrigating the same until the same had become swampy and spongy. It is further averred that any seepage water which may have arisen upon the lands of plaintiff had arisen solely from the seepage water from another canal known as the Payette Valley Irrigation and Power Company's canal, situated above the canal of the defendant.

By way of amended answer the defendant alleged more and particularly the facts claimed to constitute plaintiff's estoppel on a question of his being a director of the defendant company during the period of the construction of said canal.

The issues thus made were tried before the court with a jury and the jury returned a verdict for the defendant, and sometime thereafter a judgment for costs was entered in favor of the defendant. The plaintiff thereafter moved for a new trial on the ground of newly discovered evidence, insufficiency of the evidence to justify the verdict, that the verdict was against law and of certain errors in law occurring at the trial and excepted to by the plaintiff. Said motion was denied. The appeal is from the order denying said motion.

Five errors are assigned on which a reversal of the order denying a new trial is based. The first is the insufficiency of the evidence to justify the verdict.

On a review of the evidence we are satisfied that the plaintiff was entitled to a judgment for nominal damages at least. And the court erred in not granting a new trial on that ground.

The second error assigned is that of striking out testimony of the appellant Stuart and Issac Neal and rejecting the testimony offered by Neal and other witnesses showing and offering to show the voluntary opening of a wastegate to turn off water from said canal in order to relieve the breaks in said canal as a part of the mismanagement of the same.

Mismanagement was alleged in the complaint, and we think the evidence referred to had a tendency, at least, to establish that fact, and the court erred in striking out and rejecting any pertinent testimony upon that issue.

Counsel for respondent contend that the evidence above referred to related to the willful act of the ditch-walker and had no tendency to establish the alleged negligent management of said ditch by the defendant, as it is not shown that the defendant had any knowledge of or approved or acquiesced in said act of the ditch-walker. We take it that the act of the ditch-walker in opening the gate to relieve the ditch was the act of the company, and not willfully done for the purpose of injuring the appellant, and if damage was done thereby the company would be liable. The company would certainly be liable for the negligent and careless acts of their servant, whom they had put in charge of said canal, in his management thereof, where his acts were done with a view of protecting the property of the company.

Counsel for respond...