Young v. Extension Ditch Co.

• Decision Date: 31 March 1916
• Citation: 156 P. 917,28 Idaho 775
• Parties: LEE YOUNG, Respondent, v. EXTENSION DITCH CO., Appellant
• Court: Idaho Supreme Court

156 P. 917

28 Idaho 775

LEE YOUNG, Respondent, v. EXTENSION DITCH CO., Appellant

Supreme Court of Idaho

March 31, 1916

MOTION FOR CHANGE OF PLACE OF TRIAL-DISCRETION OF TRIAL COURT-INSTRUCTIONS - FINDINGS OF FACT - EVIDENCE IN SUPPORT OF-DITCH CORPORATIONS-RIGHTS OF WATER USERS-CONTROL OF CORPORATE PROPERTY-DECREE WITHOUT PREJUDICE TO UNADJUDICATED RIGHTS.

1. Where a motion for change of the place of trial is made under the provisions of sec. 4125, Rev. Codes, as amended by the act of 1913 (Sess. Laws of 1913, p. 385), upon the ground that "the convenience of witnesses and the ends of justice would be promoted by the change," but no affidavits accompany the motion in support thereof, and it does not appear from the complaint or answer that the convenience of witnesses or the ends of justice would be promoted by such change, it is no abuse of discretion on the part of the trial court to deny the motion.

2. In a suit by a water user against a ditch corporation, where the question of the plaintiff's forfeiture of his right to have the water delivered to him on account of nonpayment of water assessments was not before the jury for determination the trial court committed no error in not instructing the jury on that question.

3. Where the judge of the lower court, in addition to obtaining the special findings of the jury, himself went to the premises and viewed the conditions concerning which evidence was adduced at the trial, his findings of fact will not be reversed on appeal, where there is evidence to support them.

4. A water user along the course of a canal owned and operated by a ditch company should not by judicial decree be placed in a position where he can determine for himself the means of obtaining his water and exercise his own control as regards his individual rights, irrespective of the interests of the ditch company as a corporate entity, and the ditch company's control of its own property should not be taken away from it and conferred on any water user unless it is shown to be absolutely necessary in order to preserve the rights of such water user.

5. Held, that the decree of the lower court giving plaintiff an absolute right to raise the water in defendant company's canal to a certain height by placing a dam therein in order to get water on to his land, must be modified so as to give the company freedom of action in devising methods which may be effective in preserving plaintiff's rights, and, if possible, without impairing the rights of other water users.

6. Where in an action by a water user against a ditch corporation the issues are joined in such a manner that some of the matters in controversy between the parties cannot be adjudicated, the decree of the lower court should be so framed as to leave opportunity for a fair and impartial adjudication of such questions, in case such adjudication should be sought at any future time, in order to determine the relative rights and obligations of the parties in relation to such questions.

[As to diminishing or increasing flow of water to or from adjoining lands by means of dams, see note in 85 Am.St. 708]

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

Suit for injunction and damages. Judgment for plaintiff. Modified.

Cause remanded, with direction.

Lot L Feltham, for Appellant, cites no authorities.

J. L Richards, for Respondent.

Verdicts of juries and findings of trial courts, where cases have been tried on oral testimony and the evidence is conflicting, will not be disturbed on appeal. For Idaho cases holding to these rules, see Flynn's Digest, Appeal and Error, XVI, (G), 2 and 4, pp. 52 and 54.

The same rule applies in equity cases. (Flynn's Digest Appeal and Error, XVI, (G), 5, p. 54.)

COWEN, District Judge. Budge and Morgan, JJ., concur.

OPINION

COWEN, District Judge.

This action was brought by the plaintiff, who is the respondent here, against the defendant company for a writ of injunction to restrain the defendant company from interfering with plaintiff in the maintenance of a dam or obstruction in the irrigation canal of the defendant company, which the plaintiff alleges was necessary, and had been previously maintained therein by him for the purpose of raising the level of the water in the canal so that it would run into the lateral of the plaintiff at a sufficient height to enable him to irrigate all of his land lying under his lateral and which had been theretofore irrigated from the said lateral for a long period of years. The action also included a claim for a considerable amount of damages which the plaintiff says was caused during the years 1911, 1912 and 1913 to his fields and crops, occasioned by his failure to get the water as he had before been doing, which failure was alleged to be due to the defendant company's deepening of its canal, or lowering the bed of it, where the same ran through the premises of the plaintiff, and by the company's removal of said obstruction which the plaintiff had maintained in the said canal in order to raise the water up to its prior level.

A jury was called to pass upon the question of damages and rendered a verdict in favor of the plaintiff for the sum of one dollar. The court, of its own motion, submitted to the jury certain interrogatories which the jury answered and the court adopted as its findings of fact, to the effect that it was necessary to have a dam in the ditch of the defendant in order to enable plaintiff to properly irrigate his land, and that it was necessary that such dam or obstruction should be maintained in the said ditch to a height of eighteen inches; that it was further necessary that the water should be raised to a height of twenty-six inches on the plaintiff's headgate to enable him to get the water over the highest portion of his land.

The court adopted these findings of the jury and made further findings, from which it appears that the canal system in controversy in this action was originally constructed about thirty years ago and that an extension was made from the original canal by one Peter Pence and Lucie Jacobson; that the said Lucie Jacobson conveyed a portion of her interest in such extension to the plaintiff herein, and that said Peter Pence, about the year 1895, conveyed his interest to the defendant ditch company, which was organized for the purpose of enlarging and extending the said canal system; that after the enlargement and extension of the said canal system a number of the water users from the said canal, among whom was the plaintiff, took water from the said canal by means of wheels which were operated in the said canal by force of the current, and that after using this system for a number of years the wheels were from time to time removed and other systems of diversion from the canal adopted; that the plaintiff placed one or more headgates in the said canal and diverted water therefrom by means of the headgates; that about the year 1911 the defendant company deepened the canal where it passed through the premises of the plaintiff, Young to such an extent that the surface level of the water was considerably lowered and resulted in changing the conditions in the canal to such an extent that the plaintiff could not obtain water for the highest part of his land lying under the said lateral, except at rare intervals when the ditch was flowing to its full capacity, and that for the years 1911 and 1912 the defendant company permitted the plaintiff to place an obstruction in the said canal, consisting of one or more planks, which raised the water to the necessary level to permit him to irrigate all of his land, and that in the year 1913 the defendant company removed the said planks and refused any longer to allow plaintiff to place or maintain any obstruction in the canal for the purpose of raising the water level thereof. ...