Yearsley v. City of Pocatello, 7703

Citation71 Idaho 347,231 P.2d 743
Decision Date15 May 1951
Docket NumberNo. 7703,7703
PartiesYEARSLEY et ux. v. CITY OF POCATELLO.
CourtUnited States State Supreme Court of Idaho

F. E. Tydeman, Ben Peterson, Pocatello, for appellant.

B. W. Davis, L. F. Racine, Jr., and M. Henrietta McGlone, all of Pocatello for respondents.

THOMAS, Justice.

The respondents, (plaintiffs below), obtained a judgment before the court, without a jury, for $4000 against the appellant, defendant below, for damages to respondents' residence alleged to have been occasioned by water escaping negligently from a leak in the water mains of the appellant's municipally owned and operated water system which undermined the foundations and basement walls of the residence causing the walls to sag, settle and crack and the basement floor to crack.

This case was before this court on appeal once before and was reversed and remanded for a new trial. Yearsley v. City of Pocatello, 69 Idaho 500, 210 P.2d 795.

Upon the second trial of the case it was stipulated and agreed between counsel that a jury trial would be waived and the case tried anew before the district judge on the record made in the previous trial and without introduction of any further evidence and that the court at the conclusion of the trial would make its findings of fact, conclusions of law and enter judgment the same as though all the witnesses on the previous trial were called and testified exactly as they had done in the first trial. It was further stipulated and agreed that in the event the court concluded that the respondents were entitled to any damages, the amount thereof would be $4000.

On this appeal the defendant, appellant herein, has made numerous assignments of error directed at certain findings of the trial court and the conclusions of law drawn therefrom, which errors briefly are directed against the sufficiency of the evidence to support such findings; that the conclusions of law drawn therefrom are erroneous; and that the finding that the plaintiffs had filed a claim for damages with the City as required by statute is erroneous and contrary to law.

The respondents alleged that the City failed and neglected to maintain and repair and keep in repair its water system, and that because of the negligence of the City in these respects leaks had developed in its system and that such leaks saturated the ground laying against the outside basement wall of respondents' residence and had damaged such residence; the City denied any negligence in this respect or any negligence at all on its part, and affirmatively alleged that any damages occasioned to the residence of respondents was due to leaks inside of the property line of respondents; during the course of the trial the City also offered evidence, which was disputed, that any water that had gotten under the basement of respondents' residence was due to a leak in the pipes of a Mr. Lewis, adjoining neighbor of respondents.

There is no dispute in the record that the respondents suffered substantial damages to their residence, nor is there any dispute in the record that the source of such damage was water getting under the basement floor of respondents' residence; furthermore, there is no dispute as to the amount of damages suffered nor the amount of damage the City is liable for, if it is liable in any event for damages to respondents' residence.

On November 30, 1947 for the first time, the respondents noticed that the foundation of their home was settling and the walls thereof and the basement floor therein were sagging and cracking. Respondents immediately thereafter called a contractor to look the situation over and to make a determination as to what was occasioning this condition and to also make recommendations as to what should be done to correct it.

The contractor came to the home of respondents on or near December 3, 1947, and made an inspection of the premises but at that time made no specific recommendations, nor did any work. At that time there was a large crack in the cement floor of the basement and the respondents cut a sharp pointed stick, about an inch wide and 3/8"' thick, and four feet long, and poked it through the crack in the floor for a distance of three feet. When the stick was pulled out water was running off of it and mud and muck sticking to it.

The respondents also called the City Engineer's office soon after they noticed the difficulty, on a date not definitely fixed in the record but obviously some time before December 3rd, 1947. The City Engineer and two other employees of the City came to the residence of respondents pursuant to this call on December 3rd and inspected the premises and the surrounding lands but did no work nor make any suggestions, or, in fact, determine the source of such water.

Some two weeks after the contractor first came to the home of respondents he returned to the home of respondents and placed two temporary cross-beams and two sets of supporting pillars under the west portion of the house and at that time lifted the house to its approximately correct level. However, it was later, at a date not definitely fixed, necessary to lift the house some further distance, as it had in the meantime settled more.

On or near December 20, 1947 the City received another call concerning the condition existing at the residence of respondents and in that vicinity; some employees of the City, after this call, came to the property of respondents on or near December 20, 1947 and looked the situation over again; these employees testified that at this latter date they found water percolating through the surface just inside the property line of Mr. Lewis; that the sidewalk and curb had sunk; that there was a general recession of the whole ground area for a distance of eight to fifteen feet; however, at this time they were busy on other leaks and did not return to shut off the water because the crews had all gone home, they felt the damage had all been done, and they didn't want the people to be without water, and so the matter was left as found until on or about ...

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9 cases
  • C. C. Anderson Stores Co. v. Boise Water Corp.
    • United States
    • Idaho Supreme Court
    • 22 Junio 1962
    ... ...         Through the telephone answering service, subscribed to by defendant, the city police notified defendant's designated employee of the break at 2:08 a. m. At approximately 2:15 ... Dunn v. Boise City, 48 Idaho 550, 283 P. 606; Yearsley v. City of Pocatello, 69 Idaho 500, 210 P.2d 795; 71 Idaho 347, 231 P.2d 743; Vitucci Importing Co ... ...
  • McLean v. City of Spirit Lake
    • United States
    • Idaho Supreme Court
    • 27 Julio 1967
    ...See Dunn v. City of Boise, 45 Idaho 362, 262 P. 507 (1927); Yearsley v. City of Pocatello, 69 Idaho 500, 210 P.2d 795 (1949); 71 Idaho 347, 231 P.2d 743 (1951); Cox v. City of Pocatello, 77 Idaho 225, 291 P.2d 282 I recognize that many jurisdictions have statutes similar to I.C. §§ 50-2010 ......
  • Lubin v. Iowa City
    • United States
    • Iowa Supreme Court
    • 15 Diciembre 1964
    ...153 N.E.2d 439, 78 Ohio Law Abst. 526. Failure to properly construct or maintain was the basis of liability in Yearsley v. City of Pocatello, 71 Idaho 347, 231 P.2d 743; Felsway Shoe Corp. v. Louisville Water Co., 311 Ky. 259, 223 S.W.2d 875. It was held that there was insufficient evidence......
  • Williams v. Idaho Potato Starch Co.
    • United States
    • Idaho Supreme Court
    • 11 Junio 1952
    ...evidence will not be disturbed on appeal. Sec. 13-219, Idaho Code; Driesbach v. Lynch, 71 Idaho 501, 234 P.2d 446; Yearsley v. City of Pocatello, 71 Idaho 347, 231 P.2d 743; Holland v. Beames, 71 Idaho 343, 231 P.2d 741; Lanning v. Sprague, 71 Idaho 138, 227 P.2d 347; Hancock v. Halliday, 7......
  • Request a trial to view additional results

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