167 P. 1032 | Idaho | 1917
This was an action for damages, alleged to have^been caused by obstructing the channel of the Boise river and thereby diverting the waters thereof on to the lands of respondent. The cause was tried by a jury, who awarded respondent $4,000 damages, for which judgment was entered. This appeal is from the judgment. No question is raised as to the sufficiency of the evidence, it being conceded by appellant that “if the legal questions raised will not defeat the action, we believe the evidence sufficient to support the verdict.”
The allegations of the complaint, so far as material, are briefly as follows: That respondent is a corporation and appellant is a municipal corporation; that respondent is the owner of certain lands riparian to the south bank of the Boise river, directly opposite and across the river from Boise City; that appellant is the owner of riparian lands along the north bank thereof; that these lands of appellant were held exclusively for park purposes and are known as the “Julia Davis Park”; that in 1910 respondent constructed a breakwater to protect its lands from erosion by the river and also maintained, outside of the breakwater, certain riprap for the same purpose; that in 1911 appellant, by its duly authorized officers and agents, devised a plan for the main
Appellant interposed a general demurrer -which was overruled, and thereafter filed its answer, denying all of the material allegations of the complaint and pleading as affirmative defenses; res adjudicate, election of remedies and the statute of limitations.
Error is assigned to the action of the court in overruling the demurrer and in denying and overruling the several affirmative pleas. The pleas of election of remedies and res adjudicata set up an adjudication in a former action between the same parties. It appears that when the city began the construction of its breakwater and embankments, the development company commenced an injunction suit, in order to prevent the damage which it believed would result to its property. In order to secure a dismissal of the injunction suit the city entered into a written contract, by the terms of which it was to adequately protect respondent’s lands. The city failing to comply with the terms of its contract an action was instituted for damages for its breach, culminating in the decision of this court to the effect that the contract was void because' in violation of sec. 3, art. 8, of the constitution
It is contended by appellant that the action of respondent •in bringing the former suit on breach of the contract amounted to an election of remedies, and that having elected to sue upon that contract it cannot now sue in tort. But it is essential, in order to apply the doctrine of election of remedies, that the party must actually have had at his command more than one remedy. As was said by this court in an early case,
" He must not only think he has them, but must in fact have them.” (Elliott v. Collins, 6 Ida. 266, 55 Pac. 301.) The rule there announced was followed by this court in Whitley v. Spokane etc. Ry. Co., 23 Ida. 642-655, 132 Pac. 121. The latter case was cited with approval in Nave v. Powell (Ind. App.), 110 N. E. 1016-1020. Applying the rule to the facts in this case it is apparent that the plea of election of remedies must fail. Respondent sued for the breach of what it believed to be a contract, when as a matter of fact no such contract was in existence.
The defense of res adjudicate, is equally untenable. The former case, Boise Development Co. v. Boise City, supra, adjudicated the sole question that respondent’s pretended contract with the city was void. None of the matters at issue in this cause were affected by the judgment in the former. When a party, acting upon a mistaken theory as to his legal rights, brings his action and is defeated by reason thereof and afterward renews the litigation, basing his claim upon a correct theory, the former judgment is no bar to the second, action. (Black on Judgments, sec. 733; Hughes v. United States, 71 U. S. (4 Wall.) 232, 18 L. ed. 303; Freeman on Judgments, 4th ed., sec. 260; 23 Cyc. 1226; Keane v. Pittsburg etc. Min. Co., 17 Ida. 179-191, 105 Pac. 60; Rowell v. Smith, 123 Wis. 510, 3 Ann. Cas. 773, 102 N. W. 1; Russell v. Place, 94 U. S. 606, 24 L. ed. 214; Lockett v. Lindsay, 1 Ida. 324.) At most, the former case was “merely illusory and supposititious, and hence it cannot be considered as identical, in any just sense of the term, with the true cause of action
The defense of the statute of limitations is based upon subd. 2, sec. 4054, Rev. Codes, which limits the time within which an action may be brought for trespass upon real property to three years. That section has no application to the ease at bar. This is not an action for trespass on real property, but is an action on the case for consequential damages. The authorities cited both by appellant and respondent support this view. Appellant did not build its breakwater upon the land of respondent, but upon its own land, or at least where it had a lawful right to construct a breakwater, and this act did not constitute a trespass upon the lands of respondent. The resulting injury to respondent was necessarily consequential, and not the immediate result of any wrongful force directly applied by appellant to respondent’s lands. The very elements of trespass to real property are lacking. (Hicks v. Drew, 117 Cal. 305, 49 Pac. 189; Daneri v. Southern California Ry. Co., 122 Cal. 507, 55 Pac. 243; Crim v. City & County of San Francisco, 152 Cal. 279, 92 Pac. 640; Denney v. City of Everett, 46 Wash. 342, 123 Am. St. 934, 89 Pac. 934; Suter v. Wenatchee etc. Power Co., 35 Wash. 1, 102 Am. St. 881, 76 Pac. 298; 1 C. J. 996; 11 C. J. 4. For an instructive consideration of an action upon the case, see 1 Bouvier’s Law Dict., Rawle’s 3d ed., p. 425, citing numerous cases.)
Respondent has suggested that the sections of the code which govern this case are 4053 and 4060, respectively. We are inclined to the view that the latter section is the only one which has any application. It provides: “An action for relief not hereinbefore provided for, must be commenced within four years after the cause of action shall have accrued.” See. 4053, Rev. Codes, was evidently intended to limit actions upon contract or upon matters of a contractual nature, not founded upon a written instrument. Clearly, this case was not barred under either of these sections.
It is contended by appellant that the statute of limitations began to run in 1911, when the construction of the city’s breakwater was commenced, and not in April, 1912, when the
Appellant urges that in constructing the breakwater to protect its park it had no lawful authority to do any more than erect such a barrier as would prevent its lands from being overflowed or damaged, or such as would keep the river within its natural channel, and that its acts in going beyond what was necessary to accomplish this purpose and in placing within the stream obstructions which tended to divert the river from its natural channel, were ultra vires and beyond the scope of its powers, either express or implied. Sec. 42 of the Charter of Boise City, as amended by Sess. Laws 1909, p. 113, gives the mayor and common council power to establish, maintain and improve parks within or without the corporate limits of the city. The city would have implied authority to take whatever lawful means were necessary to accomplish this end. (Wilson v. Boise City, 6 Ida. 391, 55 Pac. 887.) While there is much conflict in the authorities as to just what acts of a municipal corporation are vdtra vires, the rule, applicable to the facts in this case, is generally well settled, and is stated by MeQuillin thus: “The defense of ultra vires can be interposed only where the act complained of was wholly beyond the powers of the municipality. If the wrongful act in question is one which the municipality had the right to do under some circumstances or in some manner, then it is not ultra vires.” (McQuillin, Mun. Corp., sec. 2637; Dillon, Mun. Corp., 5th ed., sec. 1648.) Even in the
It remains to consider the chief objection urged by appellant to respondent’s right to recover. This question was raised by the appellant’s general demurrer. Appellant insists that even though the defenses of election of remedies, statute of limitations, res adjudícala and ultra vires should fail, still the city is not liable in any event. The contention is, that in building its breakwater for the purpose of protecting one of the city’s public parks the city was exercising a governmental function and would not be liable for any damage which might result from its action while in the exercise thereof. The extent to which municipalities are legally responsible for torts has been the subject of endless litigation. The result of the decisions from the various jurisdictions presents no rule which can be regarded as uniform. To attempt an analysis of these rules or to discuss the cases adhering to the various diverging rules would be a task altogether beyond the necessary scope of this opinion. Some jurisdictions make the test of the city’s liability depend upon whether or not the tort was one which arose in some business which the municipality was carrying on for which it receives some revenue, such as municipally owned waterworks, lighting systems, transportation facilities and the like.
The maintenance of public parks is not made an absolute or imperative duty by the provisions of the charter of Boise City here invoked. The mere grant to the city of power or authority to maintain a public park enjoins no absolute duty upon the city to do so, but merely confers the privilege by extending the lawful corporate authority of the city in such case. The care and maintenance of parks is primarily a private as opposed to a governmental function. (28 Cyc. 1311; City of Denver v. Spencer, 34 Colo. 270, 114 Am. St. 158, 7 Ann. Cas. 1042, 82 Pac. 590, 2 L. R. A., N. S., 147; Gartland v. New York Zoological Society, 135 App. Div. 163, 120 N. Y. Supp. 24; Capp v. City of St. Louis, 251 Mo. 345, Arm Cas. 1915C, 245, 158 S. W. 616, 46 L. R. A., N. S., 731; Weber v. City of Harrisburg, 216 Pa. St. 117, 64 Atl. 905; Lowe v. Salt Lake City, 13 Utah, 91, 57 Am, St. 708, 44 Pac. 1050; Mayor of Detroit v. Bark Commrs. (Moran), 44 Mich. 602, 7 N. W. 180.)
While there are cases which hold to a contrary doctrine, for the reasons above given we are satisfied that we are announcing the correct rule. Most of the cases touching the question of municipal liability for torts with respect to parks have arisen where the facts were materially different than in the case at bar. The question has usually arisen where some injury occurred within the park; manifestly those cases can throw little light upon the serious question here involved. The question here is whether or not the city has incurred liability by so constructing its breakwater as to cause resulting damage to the opposite riparian owner. As we view the matter, the character, class or kind of municipal property which it was sought to safeguard or protect by the construction of the breakwater has no material bearing upon the real
Nor does the city’s liability in such cases rest solely upon the narrow ground of negligence, but rather upon the broad legal principle that no one is permitted to so use his own property as to invade the property rights/ or cause injury or damage to the property of another. ✓(Dillon, Mun. Corp., 5th ed., sec. 1638; McQuillin, Mun. Corp., secs. 2702, 2704; Ordway v. Village of Canisteo, 66 Hun, 569, 21 N. Y. Supp. 835; Brown v. City of Ithaca, 148 App. Div. 477, 132 N. Y. Supp. 1041; Geurkink v. City of Petaluma, supra; Martin v. St. Joseph, 136 Mo. App. 316, 117 S. W. 94.)
Having examined all the material errors assigned, we are satisfied that every legal objection raised by appellant must be resolved in favor of respondent. The judgment is affirmed. Costs awarded to respondent.