Verheyen v. Dewey

• Citation: 146 P. 1116,27 Idaho 1
• Court: United States State Supreme Court of Idaho
• Decision Date: 13 February 1915
• Parties: CHARLES VERHEYEN, Respondent, v. E. H. DEWEY and NAMPA & MERIDIAN IRRIGATION DISTRICT, Appellants

146 P. 1116

27 Idaho 1

CHARLES VERHEYEN, Respondent, v. E. H. DEWEY and NAMPA & MERIDIAN IRRIGATION DISTRICT, Appellants

Supreme Court of Idaho

February 13, 1915

DAMAGE-IRRIGATION SYSTEM-SEEPAGE-FLOODS-JOINT TRESPASS-FINDINGS OF FACT-MALICIOUS ACTS-JOINT TORT-FEASORS-EVIDENCE-ADMISSION OF-RISING WATER-TABLE-INSTRUCTIONS-NONSUIT.

1. Where damages to real and personal property are sought to be recovered from two defendants, and it is alleged in the complaint that such damages were caused by the wrongful and wilful acts of the defendants, in the joint operation and management of a canal system and reservoir, and the evidence shows that one of the defendants is the owner and has operated, managed and controlled such canal and reservoir and that the other defendant had no title or interest therein, and that such defendant did not manage or control or join in the management and control of such system, and judgment is entered on such evidence against both defendants jointly, the judgment will be set aside and a new trial granted.

2. Held, under the evidence that the water was drawn out of Lake Ethel reservoir under the direction of the general manager of the irrigation district, not maliciously, but for the purpose of protecting said irrigation works and the inhabitants of Mason creek basin.

3. The defendants are charged as joint tort-feasors, and where two or more parties act each for himself and independently of each other in a matter that results injuriously to another they cannot be held jointly liable for the acts of each other.

4. An action at law for damages cannot be maintained against several defendants jointly when each acted independently of the other and there was no concert or unity of design between them; and the tort does not become joint because afterward its consequences united with the consequences of several other torts committed by other persons.

5. Held, that if the defendant Dewey, acting for himself, opened up the gates of Lake Ethel reservoir and injured the personal property of the plaintiff, the defendant irrigation district is not liable for such unlawful acts of Dewey; and further held that Dewey, having no interest whatever in said irrigation district, could not be held personally liable for the damages done on account of seepage from said system.

6. Held, under the evidence in this case that neither of the defendants could be held liable for damages resulting from natural floods flowing down said Mason creek valley.

7. Held, that the giving of instructions Nos. 3, 4 and 9 was reversible error.

8. Held, that the denial of defendant Dewey's motion for a nonsuit was error.

APPEAL from the District Court of the Seventh Judicial District for Canyon County. Hon. Ed. L. Bryan, Judge.

Action to recover damages alleged to have been caused by the illegal and malicious acts of the defendants. Judgment for the plaintiff. Reversed.

Judgment reversed and a new trial granted, and cause remanded. Costs awarded to the appellants. Petition for rehearing denied.

H. E McElroy, Scatterday & Van Duyn and D. Worth Clark, for Appellants.

As to seepage, we contend that the complaint does not state facts sufficient to constitute a cause of action, because no negligence or carelessness in the construction or maintenance of said canal or reservoir is alleged. (Fleming v. Lockwood, 36 Mont. 384, 122 Am. St. 375, 92 P. 962, 13 Ann. Cas. 263, 14 L. R. A., N. S., 628.)

Instruction No. 9 which clearly was to the effect that the jury had the right to award exemplary damages and not only against one defendant, but against both, and permitted them to jointly assess the exemplary damages, although each defendant acted separately, is erroneous. (Nightingale v. Scannell, 18 Cal. 315; City Water Power Co. v. Fergus Falls, 113 Minn. 33, Ann. Cas. 1912A, 108, 128 N.W. 817; McCarron v. O Connell, 7 Cal. 152; 38 Cyc. 1161.)

The defendants could not be held liable on account of the manner of construction of the ditch or reservoir, because it had existed for such a period prior to the time that plaintiff purchased the land in question that no liability could exist on account of the construction or maintenance of the same, even if a proper allegation had been made. (St. Louis & S.W. R. R. Co. v. Long, 52 Tex. Civ. App. 42, 113 S.W. 316.)

The plaintiff wholly failed to prove the joint cause of action alleged, and we claimed a peremptory instruction, disposing of the case under the authority of Livesay v. First National Bank of Denver, 36 Colo. 526, 118 Am. St. 120, 86 P. 102, 6 L. R. A., N. S., 598, where the court held that "a failure to prove joint liability of persons charged as joint tort-feasors is a failure to prove the cause of action alleged." (Mau v. Stoner, 15 Wyo. 109, 87 P. 434, 89 P. 466.)

Defendants cannot be required to pay loss for which they are not responsible. (Miller v. Highland Ditch Co., 87 Cal. 430, 22 Am. St. 254, 25 P. 550.)

Griffiths & Griffiths, for Respondent.

The amended complaint alleges acts of negligence on the part of defendants in causing water to both seep through and flow over and injure the property of plaintiff. (3 Kinney on Irrigation and Water Rights, pp. 3087-3089.)

The construction of irrigation works in such a place and manner as to cause seepage in such manner and quantity as to damage other lands without providing proper and adequate drainage to prevent the damage is of itself negligence. (Howell v. Big Horn Basin Colonization Co., 14 Wyo. 14, 81 P. 785, 1 L. R. A., N. S., 596.)

A prescriptive right to act negligently cannot be acquired, no matter how long practiced. (3 Kinney on Irrigation and Water Rights, pp. 3084, 3085.)

It is not necessary that the acts of tort-feasors should be but a single act, or joint, or should not be separate as to place and time, in order to render the parties liable jointly; but if they culminate in producing a nuisance which injures the person or property of another, or if their concurring negligence occasions the injury, then they are jointly and severally liable in the highest degree. (Miller v. Nor. P. Ry. Co., 24 Idaho 567, 135 P. 845, 48 L. R. A., N. S., 700; Hillman v. Newington, 57 Cal. 56; Slater v. Mersereau, 64 N.Y. 138; 38 Cyc. of Law & Proc. 488, and notes; City of Valparaiso v. Moffitt, 12 Ind.App. 250, 54 Am. St. 522, 39 N.E. 909; Allison v. Hobbs, 96 Me. 26, 51 A. 245; Corey v. Havener, 182 Mass. 250, 65 N.E. 69; Green v. Davies, 100 A.D. 359, 91 N.Y.S. 470; Strauhal v. Asiatic S. S. Co., 48 Ore. 100, 85 P. 230; Day v. Louisville C. & C. Co., 60 W.Va. 27, 53 S.E. 776, 10 L. R. A., N. S., 167; Olsen v. Upsahl, 69 Ill. 273; Blanchard v. Burbank, 16 Ill.App. 375; Drake v. Kiely, 93 Pa. 492; Walker v. Read, 59 Tex. 187; McFadden v. Schill, 84 Tex. 77, 19 S.W. 368; Gerhardt v. Swaty, 57 Wis. 24, 14 N.W. 851; Cuddy v. Horn, 46 Mich. 596, 41 Am. Rep. 178, 10 N.W. 32; Kirby v. Del. & H. Canal Co., 90 Hun, 588, 35 N.Y.S. 975.)

"Where the principal commands the wrong to be done, and therefore personally participates in it, the two may be sued jointly. They are in no different position than any other joint tort-feasors. If there are two or more principals, one or all or any number may be joined." (Huffcut on Agency, 2d ed., p. 266; Weber v. Weber, 47 Mich. 569, 11 N.W. 389; Hamlin v. Abell, 120 Mo. 188, 25 S.W. 516; Stiewel v. Borman, 63 Ark. 30, 37 S.W. 404; 10 Cyc. of Law & Proc. 920, 931, 933; Crane v. Onderdonk, 67 Barb. (N. Y.) 47.)

SULLIVAN, C. J. Budge and Morgan, JJ., concur.

OPINION

SULLIVAN, C. J.

This action was brought to recover damages resulting from an alleged trespass on real and personal property by flooding and seepage from the canal system of the defendant, the Nampa & Meridian Irrigation District.

This is a companion case to Doran v. Dewey et al., post, p. 25, 27 Idaho 25, 146 P. 1124, which was orally argued by respective counsel with the case at bar. These two cases involve practically the same questions of law and fact, although the alleged damages occurred to different tracts of land and different personal property.

The respondent in this case alleged, among other things, in his amended complaint, that he was the owner of twenty-one acres of land situated on Mason creek flat, about two miles northeast of the city of Nampa, and that he had this tract in a good state of cultivation and had growing thereon about 900 apple trees, 300 peach trees, 50 cherry trees, 200 grape vines, berry bushes and shrubbery, all of which, as well as certain personal property, was destroyed by reason of the flooding of said land and seepage from the Nampa & Meridian Irrigation District system, and that the whole loss sustained aggregated $ 38,815.40; and prayed for damages for that sum.

A demurrer to said amended complaint was overruled and the defendants answered. The case was thereafter tried to a jury and a verdict was returned in favor of the plaintiff in the sum of $ 8,315.40, and judgment was entered for that amount. A motion for a new trial was interposed and denied, and this appeal is from that order and from the judgment, as well as from an order of the court taxing costs.

Eight errors are assigned, which go to the action of the court in overruling the appellant's demurrer to the amended complaint and defendants' motion to strike from the amended complaint certain portions thereof; the overruling of defendants' motion to tax costs; the giving and refusing to give certain instructions; the denying of defendants' motion to strike out certain parts of the testimony, and the denying of the motion of defendant Dewey for a nonsuit.

The following facts are disclosed by the record:

The land of the plaintiff is situated in the midst of what is known as Mason creek flat, about two miles nearly north of the town of...