Young v. Extension Ditch Co.

• Decision Date: 25 February 1907
• Citation: 13 Idaho 174,89 P. 296
• Parties: LEE E. YOUNG, Respondent, v. EXTENSION DITCH CO., Appellant
• Court: Idaho Supreme Court

89 P. 296

13 Idaho 174

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

Supreme Court of Idaho

February 25, 1907

INJURY TO LAND-EVIDENCE-DAMAGES-MEASURE OF-TOTAL DESTRUCTION OF-RENTAL VALUE OF.

1. Held, that the evidence fails to show total destruction of the value of the land in controversy.

2. In actions of this kind, the principle of actual compensation governs, and the damages awarded must be confined to the actual damages sustained.

3. Such damages must be proved with some degree of certainty, and cannot be left to the guess, conjecture or speculation of the jury, as in cases of tort against the person.

4. If land is taken or the value thereof totally destroyed, the owner is entitled to recover the actual cash value of the land at the time of the taking or destruction, with legal interest thereon to the time of the trial.

5. If the land is permanently injured, but not totally destroyed the owner will be entitled to recover the difference between the actual cash value of the land at a time immediately preceding the consummation of the injury and the actual cash value of the land in the condition it was immediately after the injury, with legal interest thereon to the time of the trial.

6. If land is temporarily, but not permanently, injured, the owner is entitled to recover the amount necessary to repair the injury, with legal interest thereon to the time of the trial.

7. Where the land is not injured, but the owner is prevented from raising a crop, the rental value of the land, with legal interest thereon, is the measure of damages.

(Syllabus by the court.)

APPEAL from the District Court of the Seventh Judicial District, for Canyon County. Hon. Frank J. Smith, Judge,

Action to recover for damages to land. Judgment for plaintiff. Modified.

Judgment affirmed for $ 1,000, and costs awarded to the appellant.

Richards & Haga, for Appellant.

In actions of this kind the principle of actual compensation governs, and the damages awarded must be confined to the actual damages sustained, which must be proven with some degree of certainty and cannot be left to the guess or speculation of the jury, as in case of torts against the person. (8 Am. & Eng. Ency. of Law, 611, 612; 28 Am. & Eng Ency. of Law, 604-606, and cases there cited; 1 Sutherland on Damages, 3d ed., sec. 105.)

If land is taken or the value thereof totally destroyed by the negligence or wrongful act of another, the owner is entitled to recover the actual cash value of the land at the time of the taking or destruction of its value, with legal interest to the time of the trial.

If land is permanently injured, but the value not totally destroyed by the negligence or wrongful act of another, the owner would be entitled to recover the difference between the actual cash value at the time immediately preceding the injury and the actual cash value of the land in the condition it was in immediately after the injury, with legal interest to the time of the trial.

If the land is temporarily, but not permanently, injured by the negligence or wrongful act of another, the owner is entitled to recover the amount necessary to repair the injury and put the land in the condition it was in at the time immediately preceding the injury, with legal interest to the time of the trial. (Trinity & S. Ry. Co. v. Schofield, 72 Tex. 496, 10 S.W. 575; Ft. Worth etc. Ry. Co. v. Hogsett, 67 Tex. 685, 4 S.W. 365; St. Louis etc. Ry. Co. v. Morris, 35 Ark. 622; Louisville etc. Ry. Co. v. Sparks, 12 Ind.App. 410, 40 N.E. 546; Drake v. Chicago etc. Ry. Co., 63 Iowa 302, 50 Am. Rep. 746, 19 N.W. 215; Sullens v. Chicago etc. Ry. Co., 74 Iowa 659, 7 Am. St. Rep. 501, 38 N.W. 545; Higgins v. New York etc. Co., 29 N.Y.S. 563, 78 Hun, 567; Chicago & I. R. Co. v. Baker, 73 Ill. 316; Ownes v. M. P. Ry. Co., 67 Tex. 679, 4 S.W. 593; 6 Thompson on Negligence, 7228, 7229, 7232; 13 Cyc. 152, 153.)

Damages must be reckoned as of the time of their occurrence. (Van Pelt v. City of Davenport, 42 Iowa 308, 20 Am. Rep. 622, and cases cited, supra.)

When rental value is taken as a basis for damages, it must be fixed at the difference between the rental value immediately before and immediately after the flooding. (Reichert v. Backenstross, 71 Hun, 516, 24 N.Y.S. 1009; Adams v. Durham etc. Co., 110 N.C. 325, 14 S.E. 857.)

If there be no evidence of injury to the surface upon the land, or the soil, there is no evidence to warrant damages for permanent injury. (Gulf etc. Ry. Co. v. Hepner, 83 Tex. 136, 18 S.W. 441.)

A verdict for damages must be supported by evidence as to the amount of damages sustained. There must be some basis for the approximation made, and proof of the value of the land without showing the deterioration or decrease in value caused by the wrongful acts of the defendant is too indefinite to sustain a verdict. (Texas & P. Ry. Co. v. Dunn (Tex.), 17 S.W. 822; Green v. Taylor etc. Co., 79 Tex. 604, 15 S.W. 685; Watson v. Colusa-Parrot M. & S. Co., 31 Mont. 513, 79 P. 14; Smith v. Philadelphia etc. Ry. Co., 57 F. 903; Beidler v. Sanitary Dist., 211 Ill. 628, 71 N.E. 1118, 67 L. R. A. 820, 843; Waldrop v. Greenwood etc. Co. , 28 S.C. 157, 5 S.E. 471; Western Union Tel. Co. v. Brown, 62 Tex. 536.)

Stone & Maclane and Walter Griffiths, for Respondent.

Where there is evidence to support the verdict, or there is a substantial conflict, the verdict of the jury will not be disturbed. (Gumaer v. White Pine Lumber Co., 11 Idaho 591, 83 P. 771; Hansen v. Haley, 11 Idaho 238, 81 P. 935.)

Rental value is the true measure of damages for the deprivation of the use of land caused by flooding. (City of Chicago v. Huenerbein, 85 Ill. 594, 28 Am. Rep. 626; Kankakee & S. R. Co. v. Horan, 17 Ill.App. 650; City of South Bend v. Paxon, 67 Ind. 228; Reichert v. Backenstross, 71 Hun, 516, 24 N.Y.S. 1009.)

The question of the amount of recovery is one of fact for the jury, and unless they are influenced by passion or prejudice, or exceed in their computation any possible view of the evidence, their judgment, especially when approved by the trial court, is conclusive, and their verdict is not subject to review. The authorities in support of this proposition are so numerous and uniform that it is impossible to even try to cite them. They will be found collated in volume 3, Century Digest, columns 1825, 1826, 1827, 1828.)

The jury, had they been influenced by passion or prejudice, might, under the pleadings, have returned a verdict for $ 4,000. This they did not do, but, in assessing damages, kept within the evidence. (Cox v. Northwestern Stage Co., 1 Idaho 376.)

SULLIVAN, J. Ailshie, C. J., concurs.

OPINION

SULLIVAN, J.

This action was commenced by the respondent on the twenty-fourth day of March, 1904, to recover damages alleged to have been sustained during the three years preceding the commencement of the action, for alleged injury to about fifty acres of farm land by the discharge of an excessive amount of water over and on said land from a ditch designated as a "waste ditch," constructed by and belonging to the appellant, in a careless, negligent and unworkmanlike manner; that because of the water from said ditch flowing upon said land, certain ponds and lakes were formed on said land and the water filtered through the soil and made the same wet and swampy, and caused alkali and other bases to rise and appear in damaging quantities upon the surface of said land, and has caused large quantities of tules and other noxious weeds to grow upon said land; that by reason of which said land has been rendered incapable of cultivation, and the use and profit thereof permanently destroyed to the damage of the plaintiff in the sum of $ 2,000, and his crops and labor on the same during the cropping season of 1901-02 and '03, in the sum of $ 2,000, and prays for judgment in the sum of $ 4,000.

Many of the material allegations of the complaint are denied by the answer, and as a separate defense it is averred that there was a contract between the respondent and the appellant, whereby the former agreed to extend said waste ditch to his own satisfaction, and that any injury suffered by respondent therefrom was the result of his own failure to fulfill his contract.

A third defense sets forth a prescriptive right in appellant to maintain its waste ditch, and alleges that respondent had violated that right by obstructing the ditch, and avers that if any injury was suffered by respondent, it is the result of his own wrongful acts. The cause was tried upon the issues thus made to a jury and the jury returned a verdict in favor of the plaintiff for $ 1,750, for which amount judgment was entered. Appellant's motion for a new trial was overruled. The appeal is from the judgment and from the order denying a new trial. Numerous errors are assigned, and among them the insufficiency of the evidence to justify the verdict, and it is contended by counsel for the appellant that the verdict in this case is grossly excessive, and shows on the part of the jury such a reckless disregard of the evidence as to indicate that it was rendered through passion and prejudice.

In order to decide this contention, we shall have to review the evidence in the case. The evidence clearly shows that the land in question consisted of about forty-five acres, and is very low land, and is flooded or overflowed at times by the Snake river; that there are several sloughs running across said land which contain some water during the greater portion of the year, and a small lake thereon; it also appears that water comes within two and a half or three feet of the surface, as shown by well on said land, which well is not in the lowest part of said land; that there is a bench some twenty feet high above the land on the...