Young v. Washington Water Power Co.

• Decision Date: 02 August 1924
• Citation: 39 Idaho 539,228 P. 323
• Parties: R. C. YOUNG, Appellant, v. THE WASHINGTON WATER POWER COMPANY, a Corporation, Respondent
• Court: Idaho Supreme Court

228 P. 323

39 Idaho 539

R. C. YOUNG, Appellant, v. THE WASHINGTON WATER POWER COMPANY, a Corporation, Respondent

Supreme Court of Idaho

August 2, 1924

FLOODING LAND - MAINTENANCE OF DAM - RAISING ORDINARY HIGH-WATER ELEVATION BY ARTIFICIAL MEANS-SUFFICIENCY OF EVIDENCE-NONSUIT-DECISION OF COURT-TIME TO FILE MEMORANDUM OF COSTS.

1. A motion for nonsuit admits the truth of plaintiff's evidence and of every fact which it tends to prove or which could be gathered from any reasonable view of it, and appellant is entitled to the benefit of all inferences in his favor which the jury would have been justified in drawing from the evidence, had the case been submitted to it.

2. An order granting a nonsuit, entered in the minutes, is the decision of the court within the meaning of C. S., sec. 7218 relating to the filing of memorandum of costs.

3. A memorandum of costs, served and filed within five days of the entry of an order granting a nonsuit, is in time.

APPEAL from the District Court of the Eighth Judicial District, for Kootenai County. Hon. John M. Flynn, Judge.

Action for damages for flooding land. Judgment of nonsuit. Affirmed.

Judgment affirmed, with costs to respondent.

J. F Ailshie and James F. Ailshie, Jr., for Appellant.

A motion for nonsuit admits the truth of plaintiff's evidence and of every fact which it tends to prove or which could be gathered from any reasonable view of it, and appellant is entitled to the benefit of all inferences in his favor which the jury would have been justified in drawing from the evidence had the case been submitted to it. (Brauner v. Snell, 35 Idaho 243, 205 P. 558; Testo v. Oregon-Wash. R. R. & Nav. Co., 34 Idaho 765, 203 P. 1065; Marshall v. Gilster, 34 Idaho 420 201 P. 711; McKenna v. Grunbaum, 33 Idaho 46, 190 P. 919; Donovan v. City of Boise, 31 Idaho 324, 171 P. 670; Southern Idaho Adventists v. Hartford F. I. Co., 26 Idaho 712, 145 P. 502; Culver v. Kehl, 21 Idaho 595, 123 P. 301; Mineau v. Imperial Dredge etc. Co., 19 Idaho 458, 114 P. 23; Stricker v. Hillis, 17 Idaho 646, 106 P. 1128; Colvin & Rinard v. Lyons, 15 Idaho 180, 96 P. 572; Pilmer v. Boise Traction Co. , Ltd., 14 Idaho 327, 125 Am. St. 161, 94 P. 432, 15 L. R. A., N. S., 254; Bank of Commerce, Ltd., v. Baldwin, 12 Idaho 202, 85 P. 497; Later v. Haywood, 12 Idaho 78, 85 P. 494; Shank v. Great Shoshone & T. F. W. P. Co., 205 F. 833, 124 C. C. A. 35.)

The evidence was sufficient upon which to base a verdict and judgment for plaintiff. (Petajaniemi v. Washington W. P. Co., 22 Idaho 20, 124 P. 783; Turner v. Hart, 71 Mich. 128, 15 Am. St. 243, 38 N.W. 890; Hand v. Catawba Power Co., 90 S.C. 267, 73 S.E. 187.)

"Physical facts should be given greater weight than mere expert opinions and speculative theories." (Alameda Min. Co. v. Success Min. Co., 29 Idaho 618, 161 P. 862; Petajaniemi v. Washington W. P. Co., supra.)

Under sec. 7218, C. S., a memorandum of costs and disbursements filed after the granting of an oral motion for nonsuit and prior to the rendering of a judgment is premature and should be stricken. (White v. Stiner, 36 Idaho 129, 209 P. 598.)

John P. Gray, W. C. McEachern and Frank T. Post, for Respondent.

The burden of proof was upon the appellant to show that the dams of respondent contributed to the alleged injury to his land; by the introduction of such testimony as is found in this record the burden cannot be placed upon the respondent to show what the facts are. (Hall v. Washington Water Power Co., 27 Idaho 437, 149 P. 507.)

There must be some causal relation between the wrong act charged and the injury complained of. (Steel Car Forge Co. v. Chec, 184 F. 868, 107 C. C. A. 92; Newsome v. Western Union Tel. Co., 153 N.C. 153, 69 S.E. 10; Central of Georgia Ry. Co. v. Dorsey, 116 Ga. 719, 42 S.E. 1024; Southern Ry. Co. v. Sittasen, 166 Ind. 257, 76 N.E. 973.)

"When a party with the burden on him introduces evidence consistent with two different states of fact, he proves neither." (Louisville & N. R. Co. v. East Tennessee V. & G. R. Co., 60 F. 933, 9 C. C. A. 314; Ewing v. Goode, 78 F. 442.)

"Where one claims his property has been damaged by certain acts of the defendant, it is not proper to ask the witness in what manner he has been damaged, but he should state the facts, and the jury will then in the exercise of its functions find whether the litigant has been damaged." (Kendrick v. Furman, 80 Neb. 797, 115 N.W. 541; Combs v. Agricultural Ditch Co., 17 Colo. 146, 31 Am. St. 275, 28 P. 966, 15 L. R. A. 369; Ake v. City of Pittsburgh, 238 Pa. 371, 86 A. 268.)

Opinions of ordinary witnesses may be given upon matters of which they have personal knowledge in all cases in which from the very nature of the subject the facts disconnected from such opinions cannot be so presented to a jury as to enable them to pass upon the question with the requisite knowledge. (Knauf v. Dover Lumber Co., 20 Idaho 773, 120 P. 157.)

The "decision" of the court referred to in C. S., sec. 7218, must have been in this case the granting of the nonsuit and the order dismissing the action, and the entry thereof in the regular journal and record of the court. (Collins v. Belland, 37 Cal.App. 139, 173 P. 601; Crim v. Kessing, 89 Cal. 478, 23 Am. St. 491, 26 P. 1074; Smith v. Ross, 57 Cal.App. 191, 207 P. 55; Mountain Home Lumber Co. v. Swartwout, 33 Idaho 737, 197 P. 1027.)

MCCARTHY, C. J. Budge, William A. Lee, Wm. E. Lee, JJ., and Johnson, District Judge, concur.

OPINION

MCCARTHY, C. J.

This is an action by appellant against respondent for the flooding of his land, which he claims was caused by the maintenance of respondent's dam. From a judgment of dismissal following a granting of a nonsuit, and an order denying a motion to strike respondent's memorandum of costs, this appeal is taken. Of the numerous specifications of error we will expressly consider only the following: (1) The court erred in sustaining an objection to a question put to certain witnesses as to what caused the high water to stay on the land; (2) the court erred in granting the nonsuit and entering judgment of dismissal; (3) the court erred in denying appellant's motion to strike respondent's memorandum of costs and disbursements.

Appellant's land is on the Coeur d'Alene River. Respondent's dam is at Post Falls on the Spokane River, which is the outlet of Lake Coeur d'Alene. The record does not show exactly how far it is from the dam to appellant's land, but it reasonably appears that it is some considerable distance. The land in question is occupied by appellant as a farm. Coeur d'Alene River discharges into Lake Coeur d'Alene. The theory of appellant's case is that respondent's dam backed up the water of Lake Coeur d'Alene, thereby raising the water level of both the lake and Coeur d'Alene River; that the raising of the water level in the river caused it to flood appellant's land and the water to remain thereon during the spring of 1918 as late as June of that year, thereby ruining his crop of oat hay. Respondent's dam was built in 1906. Several witnesses for appellant testified that during the spring flood in 1904 before the dam was built, the water of the river stayed on appellant's land about two weeks; that from 1907 to 1911, after the building of respondent's dam, the water stayed much longer, ranging from five weeks to three months. In 1911 a number of farmers in the neighborhood put in a dike. This relieved conditions from 1912 to 1918. In 1918 occurred an unprecedented flood, the highest that any of the witnesses had ever seen in that vicinity. It flowed over a railroad track near appellant's land, which is considerably higher than the river or the land, and flooded appellant's land fifteen feet deep. The highest flood in 1918 was around New Year. The operation of the railroad trains was suspended for two weeks and bridges were washed out. The highest water left the land within a month, but some water remained on for a month and a half. Another flood occurred in March, and the water remained on the land for about two months to a depth of about two feet in the high places, and about six feet in the low places. The exact character of the dam is not shown by the evidence. We gather, however, that the dam built in 1906, which is alleged to have been the cause of the damage, is a bear trap erected on a concrete dam. It also appears that this dam had gates, and appellant seems to have conceded at the trial that it was part of his case to show that these gates were closed. At any rate he examined two witnesses in an endeavor to show this fact. One witness, Barton, testified that on the day before Memorial Day, 1918, he was near the dam and judged from observation that the gates were closed. Another witness, Petajaniemi, testified that on one occasion, when driving past the dam, he observed that the gates were closed. However, he gave neither the month nor the year when he observed this, and therefore his testimony is of no value. Appellant introduced no evidence as to the height of the dam, although he admitted on the stand that he knew it. The only evidence offered as to elevations of the land and the river was that of an engineer, Sheffield, employed by appellant, who made measurements on April 21, 1922, during the high water for that year. He testified that, at a point where appellant's land had an elevation of 2,132 feet and the water was two feet deep on it, the river had an elevation of 2,126.54 feet, showing beyond question that at that time something was holding the water on the land other than the water level of the river. The presence of the water on the land at that time must have been due to the fact that the dike built by the farmers, and a pipe and automatic watergate constructed in the railroad embankment had been...