Page images
PDF
EPUB

verbally agreed with appellant, by way of compromise of his claim against appellant for overflowing said land, to accept $20 per acre for the land overflowed by means of said bear trap; that appellant, in reliance upon that agreement, at an expense of more than $40,000, thereafter purchased of other owners of lands along said river, similarly situated, overflow rights on their said lands amounting to more than 2,000 acres; and that respondent is barred of relief by his laches and the statute of limitations. As another and separate defense, the defendant averred: That it constructed said dam, and it was designed and intended to hold and control the flow of the waters of Cœur d'Alene Lake and its tributary waters in order that the same might be conserved and flow off gradually as the interests of the defendant for power might require; that plaintiff's land and most of the land of the valley of the Cœur d'Alene river is subject to annual overflow which covers the land from the early months of spring until about the middle of July each year, rendering the land useful only for grass that grows thereon after the overflow waters recede; that notwithstanding it is advised and believes it has the legal right to overflow the land by means of its dams and works, by reason of the inferior character of the land which would be overflowed, it has endeavored to buy its peace amicably from all persons claiming to have land overflowed, including

the plaintiff in this suit, by offering to them the full value of their land; that it offered to pay plaintiff $20 per acre for all land of his overflowed and has settled and executed overflow rights from a large number of other landowners. The answer of appellant is a plea that it has a right to overflow said land, and that plaintiff has no legal right to recover any damages from it.

Upon said pleadings and some affidavits, the respondent's motion for a preliminary restraining order came on to be heard on August 3, 1908, at which time the defendant requested the judge to make and enter the following order:

"It is further ordered that if the defendant shall pay into court the sum and costs fixed by the master and referee, within 30 days after notified of the amount thereof by the master and referee, no injunction will issue; but if said defendant shall fail, neglect, or refuse so to do, it will be enjoined and restrained from flooding or overflowing plaintiff's land.

"It is further ordered that the defendant shall not be prejudiced by said payment into court, and that it shall not thereby be prevented from further taking or prosecuting any appropriate action or proceeding relating to any question involved in this action.

"It is further ordered that either party may cause the issues covered by this order to be brought on for hearing upon serving 10 days' written notice on the opposite party, designating the time of such hearing, and unless otherwise ordered by the master in chancery and referee, for good or reasonable cause, the taking of testimony shall be continuous (from day to day) until completed, and be at Coeur d'Alene, Idaho, unless some other place shall be agreed upon between the parties and said agreement approved by the master in chancery and referee. The master in chancery and referee may adjourn or continue the taking of testimony from time to time as the convenience of the master in chancery and referee or the counsel or witand referee being expected to exercise a nesses may require; said master in chancery sound discretion in the premises.

"The taking of testimony shall and must be completed within 6 months from the date thereof (unless such time be extended by the judge of this court), and the master in chancery and referee shall make and file his findings and conclusions and report within 90 days after the expiration of said 6 months within which evidence may be taken. "Done at chambers this A. D. 1908.

day of July, Judge."

The court, after modifying the third paragraph of said requested order, made the order of reference. The third paragraph of said order was modified to read as follows: "It is further ordered that the defendant shall pay into the court the sum and costs fixed by the master in chancery and referee, within 30 days after notified of the amount thereof by the master and referee, to be sub

"It is further ordered that — be, and he is hereby, appointed as master in chancery and referee to take and hear testimony of and concerning the issues involved herein as to the extent of plaintiff's property over-ject to the order of the court." The only flowed by reason of defendant's dams and the value of said property at the time of the overflow thereof in the year 1907, and find and assess the damages that plaintiff is entitled to; that is, the same damage and measure of damages that plaintiff would be entitled to if defendant was condemning the right to flood and overflow plaintiff's land permanently and perpetually.

"It is further ordered that the expense of taking testimony by said master in chancery and referee shall be the same as if de

change as made was that the sum so paid in should be subject to the order of the court, and leaving out the provision that, in case defendant failed, neglected, or refused to pay said sum into court, it should be restrained and enjoined from flooding said land. The respondent excepted to this order on the ground that the court had no jurisdiction to order a reference or change the issues of the case or take away from respondent his right to a trial by jury. On August 10, 1908, appellant served notice on respondent requir

main and the right and power to condemn the lands of plaintiff herein and the perpetual right to flood and overflow the same and back and overflow water thereupon and thereover."

Within 30 days after the findings of the master, the appellant deposited with the clerk of the court the amount of the award and costs, and thereafter, on December 28th, the respondent filed his acceptance of the award and made a motion for an order directing the clerk to pay over the money, both parties appearing, and at the same time the appellant filed its motion for leave to withdraw the funds theretofore deposited in court. All parties appearing before the court, on December 28th an order was made shortening the time of notice and fixing the date of final hearing for December 31, 1908, and on that date, all parties appearing before the court, the respondent filed a supplemental acceptance of the award and accompanied the same by a deed in writing, duly executed and acknowledged by respondent, conveying to the appellant a perpetual easement to back and overflow with water said 34% acres of land, and delivered said deed to the clerk of land, and delivered said deed to the clerk of the court for the use and benefit of appellant upon its payment to the respondent of the award of the damages, which deed was at that time deposited with the judge of the court. On December 31st the case was finally submitted and by the court taken under advisement, and thereafter, on March 13, 1909, final judgment was entered confirming the report of the master, and denying the application of appellant to withdraw the fund, and granting the application of respondent for an order directing the payment to him of the amount deposited, and directing the respondent to make, execute, acknowledge, and deliver a good and sufficient deed for the lands sought to be overflowed, granting to the appellant in perpetuity the right to overflow said land. Thereupon the appellant moved for a new trial, which motion was denied. This appeal is from the judgment and order denying the motion for a new trial. At the time of taking the testimony before the master, the case was at issue on the complaint and answer. The respondent did not demur to the answer until after said amendment was allowed on October 1, 1908. The hearing before the master was concluded September 1, 1908.

erence, to appear before the master on the 24th of August, 1908, and submit evidence in conformity with the order. The respondent appeared at the time noticed and again renewed his objection to the jurisdiction of the master on the ground that the court had no jurisdiction to order a reference or change the issues in the case or to deprive the respondent of a jury trial, and that the answer did not state facts sufficient to entitle the appellant to condemn the lands of the respondent, and on August 26th, under protest of counsel for respondent, the trial proceeded before the master, and evidence was introduced by the respondent in support of the allegations of his complaint and in support of the issues framed by the order of August 3d, referring the cause. A large number of witnesses were examined on behalf of the parties. Both parties having introduced all the evidence they desired, the master took the case under advisement and thereafter on November 18, 1908, made his findings of fact and conclusions of law, awarding to the respondent $1,600 for the permanent overflow of 342 acres of said land, and $750 damages, resulting injury to other lands, and $202.85 for the hay crop of 1907, alleged to have been destroyed a total of $2,552.85, besides costs. On October 1st, and after the submission of the cause, the appellant procured an order from the judge of the district court permitting it to amend its answer by inserting at the end of paragraph 3 of page 20 of the answer, and before the prayer, an additional allegation, as follows: "That the defendant is now, and at all of the times hereinmentioned has been, a corporation organized and existing under and by virtue of the laws of the state of Washington, and is now, and at all of the times herein mentioned has been, authorized to hold real property and to do business within the state of Idaho by virtue of a compliance with the laws of the state of Idaho relating to foreign corporations. That heretofore, and before the filing of this suit, the defendant complied with all the laws of the state of Idaho relating to foreign corporations, and did file a certified copy of its articles of incorporation with the recorder of Shoshone county and a certified copy thereof with the Secretary of State of the state of Idaho, and designated a statutory agent residing at Wallace, Shoshone county, Idaho, upon whom papers and process could be served, and filed the said designation in the proper offices as required by It will be observed from the foregoing corporations. That the defendant has power, statement of facts that the action was among other things, under its articles of brought to recover damages for destruction incorporation, to erect, construct, maintain, of a crop of hay by the overflowing of plainand operate electric railways, electric power tiff's land and for an injunction. The anand transmission lines, and to do all things swer denied the allegations of the complaint necessary and incident thereto, including the and set up as a defense that the appellant right and power of eminent domain. That and the plaintiff had entered into an agreeunder the laws of the state of Idaho and the ment whereby the appellant had agreed to articles of incorporation which have been fil-pay the respondent $20 per acre for a pered as aforesaid in the state of Idaho, defend-petual right to flood said lands, and as a fur

predecessors in interest had the right to perpetually flood said lands, and that it procured said right by grant from them. After the issues had been made up, on the application of appellant, it appears that the theory of the case was entirely changed from one of damage and injunction by the plaintiff to one of condemnation by defendant, and referred to a master to take the evidence upon the theory of condemnation and to report his findings and conclusions.

sistently, and that they will not be heard to complain of errors which they have themselves committed, or have induced a trial court to commit." This court held in Farmers' Co-operative Ditch Co. v. Riverside Irrigation District, 14 Idaho, 450, 94 Pac. 762, that one who invites error will not be allowed a reversal of the judgment on that account, and in support of that rule cited 3 Cyc. 242; Borden v. Croak, 131 Ill. 68, 22 N. E. 793, 19 Am. St. Rep. 23; Gumaer v. Draper, 33 Colo. 122, 79 Pac. 1040; Aaron v. Holmes (Utah) 99 Pac. 450.

While the reference was not made exactly in accordance with the request of counsel for appellant, so far as the detail of the ref

in accordance with such request as to the issues to be tried by the referee, which issues were. entirely inconsistent with the special defenses attempted to be set up by the answer. The court made an error without any law whatever in its support when it deprived the respondent of the right to trial by jury of his action for damages to his hay crop, and this error was invited and made at the request of counsel for appellant, and it was such an error as clearly indicated the waiver by the appellant of the special defenses pleaded in its answer. That being true, the appeal must be disposed of by this court on the theory that the case was tried by the trial court at the invitation and request of the appellant as a condemnation case without a jury. The appellant must be held to have waived each and every of the special defenses pleaded.

If the defendant had intended to stand on its other defenses, there certainly was no need of having the case referred to a referee to ascertain the damages to be awarded for the flooding of said. land, and the order requested and prepared by counsel for appel-erence was concerned, it was made exactly lant, and also the order made by the court, provides for the appointment of a master to take testimony as to the extent of plaintiff's land overflowed by reason of defendant's dams and the value of said land at the time of the overflow in 1907, and to find and assess the damages that plaintiff is entitled to; "that is, the same damage and measure of damages that plaintiff would be entitled to if defendant was condemning the right to flood and overflow plaintiff's land permanently and perpetually." The only party objecting to the order made was the respondent, and it is contended that the court made said order upon the authority of New York City v. Pine, 185 U. S. 93, 22 Sup. Ct. 592, 46 L. Ed. 820, and Pappenheim v. Metropolitan Elevated Ry. Co., 128 N. Y. 436, 28 N. E. 518, 13 L. R. A. 401, 26 Am. St. Rep. 486. In our view of the case, it matters not upon what authority the court made said reference. The reference was made at the instance and request of the appellant, and it was for the purpose of ascertaining the number of acres of land overflowed and to determine the damages that plaintiff was entitled to recover according to the rule and measure of damages in condemnation proceedings. The court was evidently misled by counsel for appellant, and, instead of proceeding upon the theory on which the case was begun and the pleadings framed, proceeded upon the theory that it was an action for condemnation. This was clearly error, and the plaintiff by it was prevented from having a jury trial in his action to recover damages for the loss of his hay crop. However, by the acceptance of the award, the respondent has waived the error and has not appealed from the judgment. The error having been brought about at the request of the appellant, it does not now occupy a position to have the case reversed for the reason that it procured the court to make the error; it invited the er

A party will not be heard to complain in this court of an error which was committed by the trial court at his instance and request. The court said in Walton v. Chicago, St. P., etc., Ry. Co., 56 Fed. 1006, 6 C. C. A. 223, as follows: "It is a well-established doc

We think the evidence is amply sufficient to sustain the judgment.

In the view we take of this case, it is not necessary for us to pass upon or determine any other of the errors assigned.

The judgment must be affirmed, and it is so ordered, with costs in favor of respondent. STEWART and AILSHIE, JJ., concur.

On Petition for Rehearing.

AILSHIE, J. Appellant has filed a petition for a rehearing, and insists that the court has invoked against it the rule of waiver and invited error, under a misapprehension of the full extent of the order appellant requested the trial court to make in this case. This contention seems to be made chiefly upon the following statement contained in the original opinion: "The only change as made was that the sum so paid in should be subject to the order of the court, and leaving out the provision that in case the defendant failed, neglected, or refused to pay said sum into court, he should be restrained and enjoined from flooding said land." It appears, however, that in fact the order made by the trial court also omitted the fourth paragraph from the requested order. That paragraph reads as

If the appellant has been deprived of any of its property or property rights in this case, it has been done by its own initiation. It impliedly waived the defense it now urges, and should not be heard at this time to change its theory of the case. amined the evidence in the record for the purpose of ascertaining if it is sufficient to support the finding of the referee and judgment of the court in awarding damages. We think the evidence is abundantly sufficient to support the judgment in that respect, and so held in the original opinion. The petition is denied.

SULLIVAN, C. J., and STEWART, J., con

fendant shall not be prejudiced by said pay- | ment into court, and that it shall not thereby be prevented from further taking or prosecuting any appropriate action or proceeding relating to any question involved in this action." That provision of the order was considered by the court; but no mention was made of it in the written opinion. The only theory upon which that provision could have any bearing or effect would be in event it should receive the construction that, even though this reference should be made, it should have no effect if it proved unsatisfactory to the defendant in the action, and that defendant might take any other action it saw fit to take in the case or in reference to the matter in controversy, however inconsistent it might be with the reference requested. While this paragraph of the order is capable of such a construction, the court is not going to give it a construction that would be inconsistent with good faith on the part of the litigant who requested the order. To give it such a construction would be in effect saying that the appellant was trifling with the court in submitting such A document or paper may be made a part an order and asking such a conditional ref- of a bill of exceptions by reference, without erence. While the proceeding in this case copying the same therein, providing the identification is sufficient, and the paper or document, is open to that construction and might sub-purporting to be thus identified in the bill, is ject appellant to the charge that it was endeavoring to take a short cut to condemn respondent's land and also avoid submitting the question of damages to a jury, and at the same time reserve all legal and technical defenses that it might have as to the validity and extent of respondent's title and right of possession and occupancy, still we are inclined to give it the construction that the appellant was at the time acting in good faith.

A proceeding in condemnation is an admission of ownership of the property and right sought in the person against whom the condemnation is prosecuted. Condemnation was, accordingly, in conflict and inconsistent with the defense set up by appellant that it had already acquired from Frederick W. Post, by and with the consent of the United States government, the right to perpetually flood this land. If it had such right, then respondent had nothing to condemn. Appellant clearly and unmistakably led the court into the procedure adopted in this case and the theory of condemnation as embodied in this order. After it had invoked this procedure and converted the respondent's action for damages and injunction into an action in condemnation on the part of the appellant, and after the evidence had all been taken by the referee, and a report had been made, and the money had been paid into court, the court then properly refused to allow defendant to withdraw the payment and proceed upon another theory of the case that it had impliedly waived in the first instance.

STORER v. HEITFELD et al. (Supreme Court of Idaho. Oct. 29, 1909.) 1. EXCEPTIONS, BILL OF (§ 22*)-APPEAL AND ERROR ($939*)-BILL OF EXCEPTIONS-PAPERS MADE PART OF BY REFERENCE.

placed in the record; and, in the absence of a showing to the contrary, the court will prethe record is the one identified in the bill of exsume that the document or paper appearing in ceptions.

[Ed. Note.-For other cases, see Exceptions, Bill of, Cent. Dig. § 29; Dec. Dig. § 22;* Ap peal and Error, Cent. Dig. § 3805; Dec. Dig. 939.*]

2. APPEAL AND ERROR (§ 655*)-NEW TRIAL (§ 124*)-RECORD-MATTERS TO BE INCLUDED IN-MOTION FOR NEW TRIAL.

The statute or this state does not require a formal motion to be made for a new trial; yet it contemplates a motion for a new trial, and, when such motion is put in writing and filed as a part of the records in the case, the same will not be stricken.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2823-2825; Dec. Dig. § 655;* New Trial, Cent. Dig. § 250; Dec. Dig $124.*]

3. NEW TRIAL (8 153*)-PROCEEDINGS TO PRO CURE-AFFIDAVITS STRIKING FROM FILES. Under the provisions of section 4441, Rev. Codes, a party intending to move for a new trial must, within 10 days, serve notice, desig nating therein the grounds upon which the mo tion will be made, and whether the same will be made upon affidavits, etc., and under the provisions of subdivision 1 of said section, if the motion is to be made upon affidavits, the moving party must within 10 days after service thereof, or such further time as the court or judge may allow, file such affidavits with the clerk.

[Ed. Note.-For other cases, see New Trial, Dec. Dig. § 153.*]

4. AFFIDAVITS IMPROPERLY FILED.

And where the notice of intention to move for a new trial does not state that the motion will be based upon affidavits, it is improper to file affidavits, and, if filed, the same will be stricken from the records.

Where a notice of intention to move for a new trial states that the motion will be based upon affidavits, such affidavits must be filed within 10 days after the service of such notice, unless the court or judge allow further time to file the same.

[Ed. Note.-For other cases, see New Trial, Cent. Dig. § 288; Dec. Dig. § 153.*]

5. NEW TRIAL (§ 153*)-PROCEEDINGS TO PRO-, said money was paid by plaintiff to said BuCURE-AFFIDAVITS-TIME FOR FILING. chanan; but said sum and no part thereof having been paid on February 8, 1904, plaintiff and defendants entered into an agreement on that date under and by the terms of which the time of payment was extended to the 1st day of May, and on said February 8th the plaintiff promised and agreed to extend the time of payment to said May 1st, and said defendants promised and agreed to and with plaintiff that, in consideration of said extension, interest would be paid him on said sum to May 1st, upon which date it was agreed by and between said parties said sum was to become due. was to become due. That demand has been made, but said sum has not been paid. The defendants filed an answer, and in effect denied all the allegations of the complaint.

6. CONTINUANCE (§ 7*)-APPEAL AND ERROR ($ 966*)-DISCRETION OF COURT-REVIEW. A motion for a continuance is addressed to the sound discretion of the trial court, and his rulings thereon will not be disturbed on appeal, unless it appears there has been an abuse thereof.

[Ed. Note.-For other cases, see Continuance, Cent. Dig. 88 17, 18; Dec. Dig. § 7;* Appeal and Error, Cent. Dig. 3837; Dec. Dig. § 966.*]

7. CONTINUANCE (§ 19*)-ABSENCE OF PARTY. A motion for a continuance upon behalf of two defendants, which shows that the defendants agreed that the cause might be set down for trial, and in accordance therewith one of the defendants consented for said cause to be set for trial, and afterwards notified his codefendant of such fact, and at such time such codefendant was absent from the state attending to the burial of a deceased brother, and for that reason was unable to be present at the time the cause was set for trial, and it appearing that the defendants have a good defense to said action, and that the absent defendant can be present at the next term of the district court, and it further being shown what facts the absent defendant will testify to, and that such facts are pertinent and in support of the defendants' defense to said action, and it appearing that the application for a continuance is made in good faith, it is error for the trial court to overrule the motion for a continuance.

[Ed. Note. For other cases, see Continuance, Cent. Dig. §§ 41, 43-48; Dec. Dig. § 19.*] (Syllabus by the Court.)

Appeal from District Court, Nez Perce County; Edgar C. Steele, Judge.

Action by George H. Storer against Henry Heitfeld and another. From a judgment for plaintiff and an order denying a new trial, defendants appeal. Reversed.

Clay McNamee and James L. Harn, for appellants. H. G. Redwine, for respondent.

STEWART, J. This is an action to recover the sum of $2,500, with interest. The plaintiff alleges: That on September 9, 1903, at the request of the defendants, plaintiff paid to one A. N. Buchanan the sum of $2,500, which amount was paid in the form of a check drawn by plaintiffs on the Lewiston National Bank of Lewiston, Idaho, in words and figures as follows, to wit: "Lewiston, Idaho, Sept. 9, 1903. The Lewiston National Bank pay to the order of A. N. Buchanan $2,500.00, two thousand five hundred and no100 dollars. [Signed] Geo. H. Storer." That said sum was afterwards paid by said Lewiston National Bank to the order of said Buchanan. That, in consideration thereof, said defendants promised and agreed to pay said sum to plaintiff within 10 days from the time

On November 23, 1908, counsel for appellants gave notice to respondent that on November 25th they would move for a continuance until the first day of the next regular or special term of said court, and that said motion would be based on the ground of the absence and inability to attend as a witness on November 27th, of defendant Fred T. Dubois, an important and material witness for the defense in the trial of said cause, and that on the hearing of said motion the defendants would use and rely upon all the records and files and the affidavit of Henry Heitfeld attached to the motion. This notice was followed by a motion for a continuance dated November 23, 1908. The affidavit, upon which the motion was based, made by Henry Heitfeld, is, in substance, as follows: That he is one of the defendants. That Hon. Fred T. Dubois, the other defendant, resides in the city of Blackfoot, Bingham county, Idaho. That the defendants have a full and meritorious defense, and have been so advised by counsel. That Fred T. Dubois is an important and material witness, and if present would testify that at no time or place did he ever request the plaintiff in this action to pay to A. N. Buchanan the check mentioned in plaintiff's complaint, or any other sum of money whatever; nor was said sum of money ever paid for the use or benefit of either himself or affiant, and that said Dubois would further testify, if present, that he never promised within 10 days after said check was given, or at any time, to pay said or any sum of money to the plaintiff, and never on February 8th, or at any time, entered into any agreement with plaintiff and this affiant to have the time of payment extended, and that no agreement or extension was ever entered into at all by plaintiff and said defendants, and they never agreed to pay any interest on said sum of money by reason of any agreement or extension. fiant further stated that he was informed and believed that said Dubois had in his possession certain letters and correspondence writ

Af

« PreviousContinue »