Town Council of Town of Hudson v. Ladd

Decision Date31 January 1928
Docket Number1372
Citation37 Wyo. 419,263 P. 703
PartiesTOWN COUNCIL OF TOWN OF HUDSON v. LADD [*]
CourtWyoming Supreme Court

ERROR to District Court, Fremont County; BRYANT S. CROMER, Judge.

Action by Walter M. Ladd against the Town Council of the Town of Hudson. Judgment for plaintiff, and defendant brings error.

Reversed and Remanded.

E. H Fourt and Dillon, Ellery & Spencer for plaintiff in error.

No cause of action is stated in the petition, under the common law rule but the rule of the civil law has apparently been adopted in this State; Ladd v. Reddle, 12 Wyo. 362 a case quite similar on the facts, Howell v. Co. (Wyo.) 81 P. 785 is also in point. See also McDaniel v. Cummings, (Calif.) 23 P. 795; Grey v McWilliams, 32 P. 976. A defendant has the right to protect his land from overflowing waters, Sanguinetti v. Pock, 69 P. 98; Waffle v. Ry. Co., 53 N.Y. 11; McCormick v. Horan, 81 N.Y. 86. The rule of damnum absque injuria applies, Hughes v. Anderson (Ala.) 44 Am. Rep. 147; Peck v. Harrington, 109 Ill. 611; Clinton v. Myers, 46 N.Y. 511. One may change the course of a stream flowing through his land and return the water unpolluted before it leaves his premises, State v. Barker, (Utah) 108 P. 352; Tolle v. Correth, 31 Tex. 362; Ry. Co. v. Carr, 37 Oh. St. 448; Ry. Co. v. Hammer, 22 Kans. 333; Ry. Co. v. Renfro, 34 P. 802; Ry. Co. v. Keys, 40 P. 275. Municipalities are not liable for injury by surface waters resulting from the lawful exercise of a governmental function, 9 R. C. L. p. 685; Hill v. Boston, 122 Mass. 369; Dillon Munic. Corp. (5th ed.) § 1643. The liability of a municipality hinges upon whether the duties are performed by it as a substitute for the state, or for the benefit of a business corporation, Ramirez v. Cheyenne, (Wyo.) 241 P. 710.

M. C. Burk, for defendant in error.

The action is not barred until ten years from date of injury, 40 Cyc. 584; the damages accrued within four years of the commencement of the suit; Ladd v. Reddle, 12 Wyo. 362, is clearly not in point on the facts. Injury resulting from the diversion of waters of a stream is actionable, 40 Cyc. 607; Maxwell v. Shirts, 61 N.E. 754. The cases cited by plaintiff in error will be found to relate to surface waters. The diversion of the water from the natural channel of the river was a wrongful act resulting in injury; the injury in this case was shown in evidence and so found by the Court; that was sufficient to warrant a judgment for the plaintiff, which should be sustained.

E. H. Fourt and Dillon, Ellery & Spencer, in reply.

The action is barred by limitation; Taylor v. Newman, (Kans.) 139 P. 369; Cartwright v. Co., 206 F. 234; Ry. Co. v. Moseley (8th Cir.) 161 F. 72; Kelley v. Ry. Co. (Ark.) 123 S.W. 664. The cause of action, if any, accrued upon the completion of the structure, King v. Board, 107 S.W. 1189; Smith v. Co., 107 S.E. 381. The judgment is unsupported by sufficient evidence; the plaintiff misconceived the rule of damages applicable to the case, Ry. Co. v. Dotson (Colo.) 38 P. 322; Sutherland Damages (4th ed.) 3749, 3760; Co. v. Kroeger (Idaho) 105 P. 1076; Young v. Co. (Idaho) 89 P. 296; Peterson v. Arland (Wash.) 141 P. 63; City v. Rabogliatti (Ariz.) 210 P. 685; Cheda v. Bodkin (Calif.) 158 P. 1025; Pulaski Co. v. Edwards (Okla.) 217 P. 976. The petition fails to allege the presentation of plaintiff's claim before suit and is fatally defective, § 1760 C. S.; Bank v. Town (Minn.) 69 N.W. 471; County v. City, 36 Cal. 193; City v. Co., 38 Mich. 358; McEwen Co. v. Town, (Okla.) 239 P. 219; Wheeler v. Omaha (Neb.) 196 N.W. 894; Farmers Bank v. City (Calif.) 91 P. 795. The petition is defective in failing to allege that plaintiff was in possession, or entitled to possession, of the land at the time of the alleged trespass, Kossel v. Rhodes (Pa.) 116 A. 56; Allen v. Potter (Ga.) 111 S.E. 549; Whitener v. Ward (Mo.) 242 S.W. 991; Sutherland Damages (4th ed.) p. 3734.

M. C. Burk, for defendant in error, supplemental brief.

The statute of limitations may be waived by not raising the point at the trial, 17 R. C. L. 240; Alexander v. Wensel, 104 P. 903. Damages cannot be estimated at the time of the structure, due to the uncertainty of the injury, 17 R. C. L. 789; it is only when the injury begins at the time of the structure, that the statute commences to run, Kelly v. Kansas City etc., 123 S.W. 664. Plaintiff is bound to use all precautions to prevent injury, 1 Sutherland Damages § 88. Failure to present the claim does not go to the jurisdiction of the Court, 19 R. C. L. 1040-1042.

BROWN, District Judge. KIMBALL, J., and TIDBALL, District Judge, concur.

OPINION

BROWN, District Judge.

This was an action brought by Walter M. Ladd against the Town Council of the Town of Hudson. The plaintiff below alleged in his petition that the Town Council of the Town of Hudson had changed the channel of the Little Popo Agie River. That because of this change, during the flood season of 1925, the river cut into its bank along which an irrigation ditch supplying water to his land ran, causing the bank and ditch to cave into the river to his damage; and at another point the river was washing the bank near his farm buildings, and that he had paid out $ 300 in addition to his own labor filling in rock and brush to stop the wash. The answer is a general denial. The case was tried to the court without a jury and resulted in a judgment of $ 750 in plaintiff's favor. The case was brought here on error. For convenience the parties will be named as below. The defendant seeks to have the judgment reversed on four points: 1. That the action is barred by the statute of limitations. 2. That the judgment is not supported by sufficient evidence because no evidence whatsoever was introduced upon which a finding and decree as to the amount of plaintiff's damages can be predicated. 3. The petition is fatally defective in that it does not allege the presentation of plaintiff's claim to the town council in writing in compliance with the provisions of Section 1760, Wyo. Comp. Stat. 1920. 4. The petition is fatally defective in that it does not allege therein that plaintiff was in possession of or had the right to immediate possession of the land at the time of the alleged trespass.

The objection that the statutes of limitations had run against the action was not raised by demurrer or answer in the lower court. The rule is too firmly established to require discussion, that unless raised by the pleadings the question of the limitation of the action will be waived. If it is not raised at the proper time in the recognized method it is waived and cannot thereafter be set up as a defense. 37 C. J. 1213.

The work done by the Town in changing the channel of the stream was in 1914, or earlier, and was on land other than the property of plaintiff. The damage was not done until 1925. The rule in such cases is that where the obstruction or excavation is on the property of another and not necessarily permanent in character, and it cannot be ascertained at that time whether it will work an injury to the property of plaintiff, the action accrues at the time when the damage is done rather than at the time of the obstruction. Where the excavation is permanent in character, and injury naturally follows from such excavation, and the extent of the injury can be ascertained at that time the action accrues at the time of the excavation. The line of demarcation seems to be in the certainty or uncertainty of injury to plaintiff's property. Pahlka v. C. R. I. & P. Ry. Co., 62 Okla. 223, 161 P. 544; C. R. I. & P. Ry. Co. v. Bahr, 78 Okla. 78, 188 P. 1058; Kelly v. Pittsburgh C. S. St. L. Ry. Co., 28 Ind.App. 457, 63 N.E. 233, 91 Am. St. Rep. 134. It has also been held that where the cause of the injury is abatable by the expenditure of money and labor that the obstruction is not of a permanent character, and the action accrues with the injury. Ry. Co. v. Bahr, supra; Pahlka v. Ry. Co., supra.

The second point raises the question of the measure of damages for a permanent injury to real property. The plaintiff's property consisted of a tract of land containing six acres in all, of which only between three and four were irrigated. Plaintiff's theory at the trial was that he was entitled to such sum in damages as would repair or reconstruct the ditch supplying water for the irrigation of his land, or in case that it was impossible or impracticable to repair or reconstruct it, then to such sum as would place water for its irrigation on the land through other means together with such sum as he had expended in attempting to stop the cutting of the bank. The only evidence of the amount of damages he introduced with reference to the destruction of the irrigating ditch was the testimony of one witness that the only practicable means of supplying water for that purpose now was by constructing a vitrified clay pipe line eight inches in diameter and 1850 feet long at an expense of $ 1870.00. This witness on redirect examination stated that water could be brought from the Rogers-Clark ditch onto the land of plaintiff, at an expense of from $ 75 to $ 100, exclusive of right of way, and exclusive of the carrying right in the Rogers-Clark ditch. He did not know whether or not plaintiff could secure either of these rights. Evidence on the part of the defendant showed that with two hours work by one man water could be brought from the Rogers-Clark ditch into a ditch on plaintiff's land. Originally plaintiff and defendant used water from the same ditch. Defendant had abandoned its right therein on account of the excessive expense in keeping up the headgate, thereby casting upon plaintiff the entire burden of keeping in repair the headgate and ditch. The rule of damages, as we understand it, is that where the...

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