Zollinger v. Big Lost River Irr. Dist.
| Decision Date | 10 July 1961 |
| Docket Number | No. 8921,8921 |
| Citation | 83 Idaho 411,364 P.2d 176 |
| Parties | D. L. ZOLLINGER, Plaintiff-Respondent, v. BIG LOST RIVER IRRIGATION DISTRICT, Defendant-Appellant. |
| Court | Idaho Supreme Court |
Robert M. Kerr, Jr., Blackfoot, George L. Barnard, Idaho Falls, for appellant.
Anderson, Kaufman & Anderson, Boise, for respondent.
The companion proceeding in eminent domain, hereinafter referred to, is Custer County Civil No. 1754, Big Lost River Irrigation District v. Zollinger, designated in this Court as appeal No. 8920, reported in 83 Idaho ----, 363 P.2d 706.
Respondent commenced this action, Custer County Civil No. 1715, to recover from appellant Irrigation District, hereinafter called the district, actual damages allegedly suffered during the years 1953 to 1957, inclusive, by the flooding of certain of respondent's crops and lands at the instance of the district, and for exemplary damages. The trial court rendered judgment in favor of respondent for actual damages suffered during 1954 of $500; 1956 in the sum of $1,000, and 1957 in the sum of $2,000, and for punitive damages of $2,500. The district has appealed from the judgment.
The trial court found that respondent failed to prove any damages suffered during the years 1953 and 1955. Respondent not having cross-appealed from the judgment, the issues here relate only to the damages adjudged in favor of respondent for the years 1954, 1956 and 1957, and to the exemplary damages.
The district owns Mackay Dam and Mackay Reservoir in Custer County. The crest of the spillway of the dam was originally constructed at an elevation of 6,061.6 feet above sea level in order to impound waters in the reservoir. The dividing line between the reservoir and respondent's land during the time involved in this action was fixed at the contour line of 6,062 feet elevation above sea level, in accordance with elevations used in constructing the dam and reservoir. Respondent owns approximately 1,197 acres adjacent to the reservoir, which he utilizes for production of livestock and crops necessary to the livestock operation.
Beginning with the year 1954 the district elevated its dam and spillway to a crest of 6,066.6 feet above sea level in order to increase the water storage capacity in the reservoir. Resultant raises in elevation of water impounded in the reservoir caused flooding and erosion in and upon respondent's land situate adjacent to the land occupied by the reservoir. This, respondent alleged, caused deposit of debris and trash, such as logs, limbs, brush and driftwood, and deposit of sand and silt upon, and resultant destruction of, certain of his growing crops in and upon his land adjacent to the reservoir, to his damage in the sum of $3,000 for each of the years 1954, 1956 and 1957. Respondent further alleged that the district's acts in the premises were willful and malicious, knowingly committed over respondent's objections and in disregard of his demands that the district refrain therefrom, for which reasons respondent prayed for punitive damage in the sum of $1,500, for each of such years.
The district by its answer admitted certain flooding of respondent's land but denied that respondent suffered damages in excess of $790.
The district by its assignments of error questions the sufficiency of the evidence to sustain the respective awards of actual damages to respondent for the years 1954, 1956 and 1957. We therefore shall review the record only so far as to ascertain whether there is sufficient competent evidence to sustain the findings and judgment of the trial court as regards each award of actual damages.
The district furnished its records of guage measurements of heights of water impounded in its reservoir above the 6,062 contour level during the 5-year period 1953 to 1957, inclusive, which respondent introduced in evidence. The trial court found, in accordance with those records, that the district impounded water in its reservoir above the contour line of 6,062 feet above sea level, during periods, to levels and to respondent's damage as follows:
Period of Time To Contour Level Damages
----------------------- ---------------- -------
June 28 - July 4, 1954 6063 feet $ 500
May 26 - June 8, and
June 21 - July 12, 1956 6064.6 feet $ 1,000
May 25 - July 24, 1957 6066.35 feet $ 2,000
and that the resultant floodings caused seepage and saturation of, and deposit of silt and debris upon, defendant's adjacent land with consequent damage and destruction of portions of his hay and pasture crop; and in effect that the flooding to higher levels during each succeeding year after 1954 caused additional encroachments in and upon respondent's adjacent land.
Respondent's many photographs introduced in evidence portrayed the deposits of debris upon various portions of his land. He testified that in 1954 he lost portions of his hay and pasture crop attributable partly to actual flooding and partly because areas, although not actually flooded, were rendered inaccessible for utilization of the crops because, in instances, of the bogginess, and in other instances, of the presence of the debris-strewn condition, of the land; and because certain roadways were destroyed.
Respondent testified that in 1954 he lost portions of his hay and pasture crops attributable to the flooding. He estimated his loss of hay at 225 tons having an approximate net worth of $15 to $16 a ton, and he referred to portions of his pasture as adversely affected.
Respondent testified that he removed a portion, but not all, of the debris deposited on his land during 1954, and paid labor in the sum of $45; and that to have cleared his lands of the debris would have cost $825, exclusive of his own efforts.
Respondent introduced in evidence his billing of November 30, 1954, to the district, listing certain damage for that year as follows:
'* * * from muddy waters backed up on hay meadow, making it impossible to cut hay $450.00
For labor in cleaning off driftwood and rubbish 45.00.'
There is sufficient competent evidence to sustain the trial court's award of $500 to respondent for his actual damages suffered during the year 1954.
Respondent estimated his 1956 loss of hay crop attributable to the flooding at 150 tons of the net value of $15 to $16 a ton, also estimated the cost of removing the 1956 deposit of debris at 'a little more' than for prior years.
Mr. McDowell, one of respondent's expert witnesses, who visited the ranch on occasions for the purpose of determining damage occasioned by the flooding during the years 1956 and 1957, based his calculations of damages for the year 1956 upon several factors, i. e., His testimony then appears:
* * *
* * *
'I felt that also the crossings that were washed out and that part of the fence destroyed above the 62 [6200 contour level] would be an additional $600, or a total of $3,650.'
We are of the view that the evidence is sufficient to sustain the trial court's award of $1,000 to respondent for his actual damages suffered during 1956.
Respondent testifying as to his 1957 damage from flooding mentioned that the district's reservoir was raised to a higher level and that the water was on his land for a longer period than during the previous floodings. This is shown by the district's record of guage measurements of heights of its impounded water, upon which the court based its findings in this regard.
Respondent then testified that the flooding had caused changes in grasses and vegetation to varieties less desirable and less palatable to livestock; also that the 1957 flood water caused the channel of Big Lost River to become filled, causing overflow of the river on both sides of its original channel, and to flow in two courses onto respondent's land thereby covering it in places with sediment, and in places washing the land away; that because such flooding washed out a road, respondent couldn't get across the Big Lost River to harvest crops in a certain area, unless by constructing a new road; that he lost an estimated 225...
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