Thibadeau v. Clarinda Copper Mining Co.

• Decision Date: 18 December 1928
• Docket Number: 5155
• Citation: Thibadeau v. Clarinda Copper Mining Co., 47 Idaho 119, 272 P. 254 (Idaho 1928)
• Parties: HELENA F. THIBADEAU, Respondent, v. CLARINDA COPPER MINING COMPANY, a Corporation, Appellant
• Court: Idaho Supreme Court

272 P. 254

47 Idaho 119

HELENA F. THIBADEAU, Respondent, v. CLARINDA COPPER MINING COMPANY, a Corporation, Appellant

No. 5155

Supreme Court of Idaho

December 18, 1928

NEW TRIAL-MOTION-EFFECT-JURISDICTION-WHEN HEARD-APPEAL AND ERROR-ASSIGNMENTS OF ERROR-SUFFICIENCY-WATERS AND WATERCOURSES-DIVERSION OF UNDERGROUND FLOW-MEASURE OF DAMAGES-VALUE - EVIDENCE - OPINIONS - EXPERT TESTIMONY-WITNESSES-COMPETENCY.

1. Successful party on trial is not required to, but may, under C. S., sec. 6891, bring notice of motion for new trial to attention of trial court, without necessity of waiting for convenience of moving party.

2. There is no statutory requirement that motion for new trial be submitted and determined before expiration of time allowed for appeal from judgment.

3. Notice of motion for new trial, if filed within time required by statute, continues the jurisdiction of the court to rule upon the merits of the motion, and, where party is diligent jurisdiction is not affected by expiration of time for appeal from judgment.

4. Court's hearing of motion for new trial on the merits amounts to a finding that moving party was not guilty of inexcusable delay and that motion was presented at the earliest practicable period, as required by C. S., sec. 6891.

5. Assignments of error, referred to by number in brief and discussed at length, held not insufficient.

6. Assignment of error in setting case for trial, based on want of jurisdiction not treated in appellant's brief nor orally argued, held insufficient.

7. Measure of damages for permanent and irreparable damage to spring is the diminution in the value of the property to which the water right was appurtenant; that is, the difference between the market value of such property before and after injury.

8. If injury to spring is susceptible of repair, or if adequate water right can be procured, the measure of damages is the reasonable cost of restoration or replacement plus compensation for loss of use in the meantime, unless such cost exceeds the difference in the market value of the property before and after the injury.

9. In action for damages for destruction of spring, admission of opinion testimony as to value of the water right held error in the absence of any proof that witnesses were competent to give opinion.

10. Owner of spring destroyed is presumed to be acquainted with its value and competent to express an opinion thereon.

11. Testimony as to value is generally required to be given by experts.

12. Weight to be given testimony of a witness as to the value of property is for jury.

13. Whether witness is qualified to express opinion as to value of property is question for court.

14. In action for damages for destruction of spring by mining tunnel, evidence that defendant constructed bulkhead in tunnel at point where it passed beyond their boundaries, and that water was spouting through the cracks and crevices in such bulkhead, held competent as indicating that water-laden formation was tapped by tunnel at place beyond defendant's boundaries.

APPEAL from the District Court of the Eighth Judicial District, for Bonner County. Hon. Miles S. Johnson, Judge.

Action to recover damages. Judgment for plaintiff. Appeal by defendant from order denying new trial. Reversed.

Reversed and remanded. Costs to appellant. Petition for rehearing denied.

E. W Wheelan, for Appellant.

We believe that it has been the practice among the members of the bar to take an appeal from the order denying the motion for new trial providing that appeal is taken within the time provided by statute regardless of the fact that the time has expired for taking an appeal from the judgment. This practice has the express approval of this court in the case of Times Printing & Publishing Co. v. Babcock, 31 Idaho 770, 176 P. 776.

In Kelley v. Clark, 21 Idaho 231, 121 P. 95, construing the statute as amended this court said: "Either party to the action can demand a hearing upon a new trial after notice of the motion . . . . and the respondent has the same right to bring the motion for a new trial to a hearing after notice as the appellant."

A judgment must be based upon the pleadings and the issues raised thereon and the proof and the amount of recovery cannot exceed the amount demanded in the complaint. (15 R. C. L., p. 604, citing The Hoppet v. United States, 7 Cranch (U.S.), 389, 3 L.Ed. 380; Crocket v. Lee, 7 Wheat. (U.S.) 522, 5 L.Ed. 513; Vattier v. Hinde, 7 Pet. (U.S.) 252, 8 L.Ed. 675; Reynolds v. Stockton, 140 U.S. 254, 11 S.Ct. 773, 35 L.Ed. 464; People v. Stanford, 77 Cal. 360, 18 P. 85, 19 P. 693, 2 L. R. A. 92; Respini v. Porta, 89 Cal. 464, 23 Am. St. 488, 26 P. 967; Gille v. Emmons, 58 Kan. 118, 62 Am. St. 609, 48 P. 569.)

In an action brought to recover damages for the diversion of water used for irrigation purposes and domestic purposes, the measure of damage is the difference in the value of the land or premises on which the water is used immediately prior to the diversion and immediately following the diversion of the water, or in other words, it is the value of the land with and without the water. (Farnham on Waters and Water Rights, p. 1674, citing Southern Marble Co. v. Darnell, 94 Ga. 231, 21 S.E. 531; Lycoming Gas & Water Co. v. Moyer, 99 Pa. 615; Gallagher v. Kingston Water Co., 25 A.D. 82, 49 N.Y.S. 250; Syracuse v. Stacey, 45 A.D. 249, 61 N.Y.S. 165.)

A water right is appurtenant to the land upon which water is used. (C. S., sec. 5580; Russell v. Irish, 20 Idaho 194, 118 P. 501; Paddock v. Clark, 22 Idaho 498, 126 P. 1053.)

In an action brought to recover damages, it is the duty of the court to instruct the jury as to measure of damage. (17 C. J. 1061, citing with other cases: Tretter v. Chicago Great Western Ry. Co., 147 Iowa 375, 140 Am. St. 304, 126 N.W. 339; Jenkins v. Kirtley, 70 Kan. 801, 79 P. 671; Baltimore Belt R. Co. v. Sattler, 102 Md. 595, 62 A. 1125.)

James F. Ailshie, for Respondent.

For a trial court to grant a new trial after the judgment has become final would be a violation of the intention of the legislature and the spirit of the law as prescribed by C. S., sec. 7152.

An assignment of error "that the court erred in giving instruction No. 1" is insufficient to present any question to the supreme court for consideration, for the reason that it does not state the particular in which the law was misstated. (State v. Hoagland, 39 Idaho 405, 228 P. 314; McDonald v. North River Ins. Co., 36 Idaho 638, 213 P. 349.)

The specification of error that "the evidence is insufficient to justify the verdict and the verdict is against law" will not authorize the appellate court to review the evidence. (C. S., subd. 3, sec. 6886; Hill v. Porter, 38 Idaho 574, 223 P. 538; Bell v. Morton, 38 Idaho 758, 225 P. 137; Abercrombie v. Stoddard, 39 Idaho 146, 228 P. 232; Hardy v. Butler, 39 Idaho 99, 226 P. 669; Hurt v. Monumental M. Min. Co., 35 Idaho 295, 206 P. 184; Weber v. Pend d'Oreille Min. etc. Co., 35 Idaho 1, 203 P. 891; Hawkins v. Smith, 35 Idaho 349, 205 P. 188; Merrill v. Fremont Abstract Co., 39 Idaho 238, 227 P. 34; Newport Water Co. v. Kellogg, 31 Idaho 574, 174 P. 602.)

Where real property is taken or destroyed, the owner is entitled to recover the value of the property at the time of the taking or destruction with legal interest thereon to the time of the trial. (Young v. Extension Ditch Co., 13 Idaho 174, 89 P. 296; Boise Valley Const. Co. v. Kroeger, 17 Idaho 384, 105 P. 1070, 28 L. R. A., N. S., 968.)

If a thing destroyed, although it is a part of the realty, has a value without reference to the soil on which it stood or from which it was severed, a recovery may be had of the value of the thing destroyed. (Armstrong v. May, 55 Okla. 539, 155 P. 238; Producers' Supply Co. v. Maple Leaf Oil Co., 82 Okla. 120, 198 P. 577; Producers' Supply Co. v. Maple Leaf Oil Co., 103 Okla. 224, 229 P. 1037.)

A nonexpert witness may give his opinion as to the value of real property or appurtenances, and the weight of his testimony is a matter for the determination of the jury. (Idaho-Western Ry. Co. v. Columbia etc. Synod, 20 Idaho 568, 119 P. 60, 38 L. R. A., N. S., 497; Lawson on Expert and Opinion Evidence, 2d ed., 463 et seq.; 13 Ency. of Ev. 552; San Diego Land & Town Co. v. Neale et al., 78 Cal. 63, 20 P. 372, 3 L. R. A. 83; City of Santa Ana v. Harlin, 99 Cal. 538, 34 P. 224; People v. Marblehead Land Co., 82 Cal.App. 289, 254 P. 553.)

BAKER, District Judge. Wm. E. Lee, C. J., and Budge, Givens and Taylor, JJ., concur.

OPINION

BAKER, District Judge

--This is an action to recover damages. The plaintiff alleges, in substance, that for more than twenty years prior to the commencement of the action she had been entitled to the use of the waters of a certain spring and creek for domestic purposes in her home and for the irrigation of her lawn, trees and garden; that during the summer of 1922 the defendant unlawfully extended a tunnel beyond the limits of its mining property and into the adjoining ground of the Copper Giant Mining Company and there intersected a laminated vein of slate over which flowed the waters of the creek which were at a lower point diverted by plaintiff; that as a result of the tapping of this slate vein, a vent was created through which the waters to which plaintiff was entitled escaped into defendant's tunnel and were by it carried away and that such diversion was permanent. She alleges that "to procure and build another system capable of supplying her demands would cost at least $ 1499, and that by reason of the loss of the use of said water system she had been damaged in the sum of $ 1500," and that by reason of the defendant's unlawful and negligent acts she had been damaged in the total sum of $ 2,999, in which sum she...