*1 resulting from dangerous situation Griffeth, negligence.” Melvin GRIFFETH and Lois D. defendant’s Appellants, safety of lives or “to the risks What suppose the com- we citizens” COMPANY, UTAH & POWER LIGHT thought minimized would be missioner corporation, Appellee. forbidding of the rules observance No. 13611. storage gasoline dwell- in “frame gasoline ings,” requiring containers Appeals United Court of States way, conspicuous in such a marked to be Ninth Circuit. May warning legend? specific with a 9,May commissioner not deduce that the we among others, risk, mind the might explosion and cause an someone fire, resulting personal injuries and with damage, by dan- misuse ignorance gerous liquid of what very risk
was? When the which it regu- objective of the administrative prevent operates
lations to harm, to cause things can in nature of difficulty proximate
be no causation.
On the evidence the case at bar that,
could be found had the regula- requirements observed tions, plaintiff un- would not brought gasoline wittingly dan- into
gerous proximity to the fire. read We do not the statement finding judge implying
district part plaintiff ex- that the caused the negli- plosion contributory his own gence. judge Pope, Judge, It seems the district did Circuit dissented. mind, not ruled have this since he as a plaintiff matter of law that the not burning liable on the counterclaim for lodge, ruling down the he could
hardly thought have made if he plaintiff negligence guilty had been causing explosion Further- and fire. more, contributory negligence of the
plaintiff, properly if that was an issue on complaint, presented
the amended on this
record a debatable fact jury. A verdict for the defendant
could not have been directed on the
ground plaintiff gu-ilty that the contributory negligence as a matter of
law. District Court
vacated and the case remanded to that proceedings
Court for further in- opinion.
consistent *2 causing operation,
necessities of such an flowed has the stream to fluctuate as through One channel. natural company Oneida was the facilities *3 some miles Plant located Power and dam by occupied Griffeths. above lands into the Several creeks flowed other these and Bear River between the During winter, forms in lands. ice streams, this area in the beds including the Bear. Griffeths, plaintiffs, in The claimed original parcel complaint their that a of land flooded owned them was discharging carelessness quantities in of defendant water, overflowed which passes point its banks at a where it through plaintiffs lands of their damage particulars, and that several defendant had been warned of the con- sequences of its acts. Defendant filed among pleaded, answer and fenses, other de- plaintiffs’ complaint did not upon state a claim which relief could be general granted, denial and the predecessor plaintiffs from a in title perpetual of a for easement particular these lands fluctuation of Andersen, Pocatello, Ida- Andersen & operation plants. the river in the ho, Logan, Daines, Utah, L. Newel G. Defendant also filed a motion for sum- Daines, City, Utah, Delos appellants. Lake for Salt mary judgment, supported by affidavits. granted The court the latter motion on- Ray, Quinney Ovard, Charles L. & ly part, holding plaintiffs Nebeker, Ray, City, Paul H. Salt Lake bound agreement the release and easement Utah, Merrill, Idaho, Pocatello, A. L. in accordance appellee. for therewith. FEE, HEALY, Cir- POPE Before Subsequently, on came for the cause Judges. cuit trial. amend the Plaintiffs moved to alleging that defendants Judge. FEE, Circuit ALGER JAMES days five overflow “care- for before the discharged lessly negligently les- into” own lands and are The Griffeths County, quantities Franklin stream of water above lands in sees of other Idaho, through River normal flow so “the banks said Bear Light which forty proper- from the Power & Com- river” about rods Utah The flows. generation ty plaintiffs engaged were unable to in the line con- pany is public which flowed first service. tain water over current sale of electric twenty- plaintiffs’ par- company more other lands and then over has for than operated cel, years for reason that defendant maintained five discharged previously water plants River in dams the Bear froze electricity. subsequent discharges bed and the of such the manufacture point, purpose, Thereby, the waters overflowed at notwithstand- impounded, continuously defendant had notice and had been stor- been have discharge accordance with the warned continued released above ed and Engineer company, lands of Chief flood the normal flow would occupy position plaintiffs. in the which he continued was included There damages year to other until 1926 when became he amendment claima Engineer company. Defend- Chief for defendant leased. lands which company’s objected since He continued to chief amendment be the ant engineer year granted he- summary judgment 1937 when until had been original was made defend- parcel. record shows Vice President charge engineering, company ant as follows: times, position affiant has at all said: Counsel for defendant “ b occupies. * * * since 1937 held and now we found that we *4 land, “Affiant was and familiar with is the same an to this easement Dam construction of defendant's Oneida under feel that' easement. We upon, and which was built Power Plant a sum- entitled to conditions we are County, Ida- the Bear River in Franklin mary judgment— ho, years and which plaintiff’s complaint. is referred to in for the “The Will counsel Court: n says “Affiant further that he has at plaintiff they such admit all times since the construction of easement ? said personally dam been familiar with said my under- “Mr. Anderson: dam, personally and familiar with the standing. power thereof. Said dam and permit “The I will Court: purpose was built for the of im- will be amendment but the issues pounding waters of the Bear River and the abuse limited to the employing the waters of Bear River for of the easement.” generation hydroelectric power. colloquy, order As a result of this says prior “Affiant further on and to both thus established certain facts as day December, 1926, 22nd parcels for trial. Both and left one issue plain- lands referred to and described ruling parties complain of this tiff’s were the judgment. summary court on motion for George Thomas, Thomas and Anna E. assign that the trial court Plaintiffs 22, 1926, his wife. Prior to December sustaining motion “erred in defendant’s George Thomas and Anna E. Thomas as- summary judgment to the effect against compa- serted a claim defendant permitting defendant had an easement ny damages and demanded from defend- plaintiffs’ to flood land.” alleged company ant for the ruling of the The chief basis of the the lands referred to and described in court was an affidavit as follows: plaintiff’s complaint. claim so as- being duly up- Hale, “J. A. first sworn against company by serted says: oath, deposes on his and George Thomas and Anna E. Thomas compromised settled, and citizen of was and “That he is resident George City Lake, County December of Salt State Thomas and age Utah, twenty-one signed, E. Thomas Anna executed and and over the company years. delivered to defendant a re- figures, lease easement words and graduated “Affiant was the Vir- .from follows: ginia Polytech Institute in 1911 with a degree Engineer, all “Inst. No. 27690 of Civil and at pursued profes- then has his times since “Release and Easement engineer. sion as year agreement “In “This affiant became made and entered defendant, day employee December, Utah Power and into this 22 Light engineer. Company, Light as a civil Utah Power He between & Com- employment pany, in such until hereinafter referred continued George ‘Grantee,’ year 1923 when he became Assistant Thomas and Anna whereof, parties have “In witness wife, called Thomas, hereinafter his E. n ‘Grantors,’witnesseth: day this 22 hereunto set their hands December, 1926. consideration, for a valuable “That “George hereby Thomas receipt acknowl- of which “Anna, hereby E. Thomas edged, named the Grantors above “Witness, discharge Power & Utah release Light “Flora Company, and as- Eliason. successors Utah, “State of “County signs, for dam- and all claims from proper- ages lands, crops, of Salt Lake-ss. or other ty caused heretofore of the Grantors day December, 1926, “On 22d of Lindsay, Notary n flooding by storage impounding or or before me William n ofthe waters River, by the of Bear or Utah, per- Public and for the State of river, said or of the flow of fluctuation sonally appeared George Thomas and thereon, otherwise, by deposit or of ice Thomas, wife, Anna E. known to me opera- due to the maintenance persons and/or tion of Grantee’s Oneida be the whose are sub- names Power Plant instrument, scribed to the within plants operated by said Grantee on other duly acknowledged they to me that exe- *5 Bear River: said cuted the same. whereof, “In witness I have hereunto consideration, for said above “And my my set hand and affixed notarial seal Grantors, named their successors and day in this certificate first above hereby grant assigns, unto said Utah written. Light Company, 'Power & its successors “(Seal) Lindsay William assigns, and an easement for the “Notary Public, Residing manipula- to continue as aforesaid the City, at Salt Lake Utah. tion and fluctuation of the flow of said passes “My river as it in its natural expires channel commission 5/10/30.” through along owned, or the lands claim- duly “Said release and easement was possessed by Grantors, or ed located acknowledged by George verified and 17, Township Range South, in Section Thomas and Anna E. Thomas before M., particularly 39 East B.B. & includ- Lindsay, Notary Public, William and ing, following land, but not limited to the duly the same was thereafter recorded to-wit: County in the office of the Recorder of County, Idaho, day Franklin on the 11th Quarter “The Southeast North- January, 1927, in Book 5 of Miscel- Quarter, west the East half of the laneous, page n Southwest 43. Quarter and the Southwest Quarter Quarter of the Southwest referred to and “The lands described n Section 17, Township Range South, and in said release easement included M., excepting approxi- 39 East B.B. & lands referred to described mately 10 complaint. acres plaintiff’s heretofore transferred Company, to the Riverview Sanitarium “Affiant further states that in the n containing acres, more or less. December, 1948, month and the month January, 1949, he was familiar with “And for said consideration dam- operation plant of the Oneida of the ages from result future flood- company, and that the same depositing ing of ice on said land operated normally and in was the same by the fluctuation of the flow of caused operated prior manner in which it was operation river in the normal said December 1926. plants, up stream Grantee’s land, hereby from waived “Affiant further states that Grantor’s fluctua- released, provided Bear River future fluctua- tions reason of the operation shall not exceed tions those heretofore use Oneida Dam greater occurring were no the months of of said Decem- Onei- January, 1949, plant. ber, da than were Thomas, Thomas, grantor, prior E. and Anna occurred which the fluctuations piece wife, conveyed his same 22, 1926. December land, August 10, 1935, signed ac- J. A. Hale.” “/s/ knowledged and re- November by plaintiffs filed Two affidavits corded March The deed to Evelyn out set Griffeth issues. on these D. Melvin and Lois Griffeth adjoin- on land lived that she had one Griffeth from Edward T. Griffeth controversy parcel in the Griffeth Lillian B. Griffeth to the same had not overflowed river acknowledged September 19, 1946, years, forty-five latter in placed September 27, of record com- exception of the incident apparent thus It is that there was noth- Also, anwas plaint is here made. ing to controvert existence Griffeth, fee granting of Edward affidavit easement, instrument plaintiffs, prior that he owner due execution thereof in 1926 premises under possession of these title, George then holders of the fee purchase from partially paid contract (deceased 1951) Thomas and Anna E. George for two his wife Thomas and Thomas, E. wife, filing or the thereof in 22, 1926, years December before public or three records. conveyance ease- date of the grant Since the of easement was parcel defendant, that the ment to binding upon thus established and was during of his the time flooded never been plaintiffs,1 previous the recital of a over nothing of possession, he knew and that damage flow and the circumstance of Nei- consent it. and did not estoppel constituted an of record.2 The genu- suggestions raised a' ther of these *6 Hale, personal affidavit of based on affi- fact. The last of material ine issue knowledge, positive also contains a as un- the contract neither sets forth davit sertion as to this basic incident and the claims Edward Griffeth now der which grant circumstances under which the possession nor there in does to have been appear was made. pears ap No direct denial thereof or of its terms statement testimony. in the affidavits or It nowhere is shown It conditions. by generalities was not overcome of a deed to him claims the issued the affiant many negative upon character based the state years pursuant later was persons of ments who the indicate lands in con- 1926 or he claimed contract not knowledge were overflowed to their possession he he of a claimed tinuation deny who but do specific not the inci alleged continuity or is then No held. dent. It was also an uneontroverted implied- plaintiffs for Counsel claimed. fact that water had been fluctuated at grant ly of the the existence admitted exactly dam in the the same manner at by plaintiffs, and lands owned as to the flooding time the of the which the expressly the existence of a admitted complaint is during based as it had been parcel easement over the other similar period prior grant. the to the date of the by them. affidavit was leased No which touching There testimony were also other was offered the facts or establish- by ed and plaintiffs. Other uncontroverted. affidavits The latter Oneida plant operation was in normal The deed other circumstances. showed Decem- ber, Griffeth, signed January, 1949, and ac- Edward T. at the damage knowledged George of times of the above named quired pro- 55-811, estoppel, to raise § Idaho Little 1. The Code see Bergdahl recording v. ease- Oil of an Idaho vides Laudahn, P.2d 833. Cf. Allen notice will constitute constructive ment subsequent purchasers, Idaho 81 P.2d and that The inaction conveyance against prior acquiescence be void as failing will to move purchaser subsequent fide for bona a- against grant cloud records, § who first 55-812. value import- of their title is considerable on in this connection. re- ance the elements a discussion of 2. For ny operation at at thereof variation of fluctuations is made. The here in these period manner lands or elsewhere was introduced was in the same genuine operated facility at trial. issue been There which that developed point. But on On the other before December hand, part grievance language re- the instrument material of of said only plaintiffs, developed, lating operation applies subsequently of to normal alternating Thomases, that, was irregular personal to the whatever the or a covenant damages grantors, whereby “that undulations forth back and or flooding up down, or de- there future was an overflow result from positing caused of ice said land” are waived. obstruction ice. The of true, “as limitation words aforesaid” in the If sole instrument previous describing “provided instrument, fluc- refer to a future clause operations resulting hereto- not those and overflow there- tuations shall exceed occurring operation paid said from and the consideration for fore apply plant,” defendant “to continue” Oneida grant would operation maintenance Both these conclusions Onei- either. plant rejected. plants normal and identical da The other Bear River not- withstanding damages plant operation each critical of this at to the lands or pertinent other period un- was therefore “caused * * * claim, But is the or controverted. fluctuation river, does the flow of context not bear the said which the whole out, or de- * * * posit thereon, occur- of ice “fluctuations otherwise” due ring manipulation operation obvious, thereto. of said Oneida plant” fluctuation of the river in are not those which occur dam, more rather those which occur on less ef- passed through plaintiffs’ instrument, plain- fect as it after land. lands providing opera- tiffs. fluctuations dam, provide does tion of easement must be con to continue aforesaid “the ma- against grant strued successors nipulation and flow fluctuation *7 or,3 gratuitous, since it was not passes one in said river its natural given for which consideration was along through or the lands own- channel compensation paid. parties, The fur ed, possessed claimed or the Gran- thermore, must have construed the in
tors.” light in strument of the conditions positive There is direct and state- prevailing at the time it was made.4 It Hale, out, ment of above set that “the acquired because of an overflow River fluctuations the Bear reason by icing caused in conditions an Idaho operation of the use the Oneida suggested winter, which recurrence in greater in Dam” were no the time of plants the future. The and dam had during is made than operation in years. then been for several period the critical grant. before the date of power plant The “dam and was built for filed Plaintiffs no affidavits mak- purpose impounding waters of ing of the amount of an issue fluctuation employing Bear River and the waters of on their lands or elsewhere. The facts generation River for the the Bear uncontroverted. No thus testimo- “ permit.” * * interpretation * will Lone Star grant When terms of a 3. Childress, Tex.Civ.App., doubtful, grantee may Gas Co. v. 187 are take 936, 939. Mclntire strongly S.W.2d v. Marian language most in favor.” Co., Ky. 342, 227 Missionary Society Congrega- Coal 190 S.W. 298. of Salesian * * * Evrotas, 86, “All doubts be resolved tion 523, N.Y. N.E. v. “ * * * against grantor.” Am.Jur., 524. must construed 165, Deeds, p. 530. § strongly against grantor, most favorably grantee, Blakney, Hogan to the 274, so as most 73 Idaho v. P. largest 209, fair estate which a 2d confer ’ hydroelectric power.”5 parties result, The as a is found in Jeffers Mon- light pub- thus contracted in the tana Power 68 Mont. 217 P. grant lic interest and main- where no was involved. Like- wise, plants opinion tenance of the and the dam. our in the case of Johnson manipulation Light Co., Cir., and v. was realized that Utah Power & caused F.2d fluctuation of the river were holds that the release of water filling the nature of is, the business of defendant the bed of a natural stream be- furnishing energy pub- policy cause Idaho, electric of like not a nui- n lic, irregular require sance,6 which would re- and that one inconvenienced or damaged provide peak, lease water to loads. this use of the natural chan- Unquestionably, imperative capacity by power this was in nel to company remedy winter di- has paramount when the natural flow was because of the oper- public minished since the could not interest. releasing impounding ate without court, upon The trial the basis more than the then flow of the river to of the established and the uncon meet The demands. exhibits subse- affidavits, power7 troverted had the quently placed pe- in evidence as to the by finding narrow the issues certain riod emboss and illuminate “material facts exist without substan parties the conditions which the 'must controversy”. tial There was no error contemplated. These exhibits show ruling. in this beyond that the releases water normal Any facts so part found would be a by higher flow are dictated loads which background of the case in-the same layman occur at hours when even a allegations manner pleaded by de- anticipate these would fall in or- fendant plaintiffs. and undenied bordering der to serve the needs'of com- require Such facts would neither further munities. allegation proof by nor party. either claim, suggested, now that noth- Certainly, defendant had no further bur- acquired right but the to send regard den in to these matters. Defend- water down the natural channel without ant position therefore took the overflowing the is inconsistent bank court, trial consistently .which it has with the situation. The law of Idaho since, maintained summary judg- that a gave power company to fill ment the whole case should have completely natural, channel of Bear granted. cursory been A examination grant. river without See Idaho of the uncontroverted facts convinces Constitution, Article and Idaho § signal that there is merit this conten- Code, 42-105, 42-801, 52-108. §§ *8 tion.
parties then must have so construed this
granting something
However,
instrument
judge
fur-
the trial
was en
tirely
holding
ther and additional. The idea that
accurate in
there was still
power company
purchase
did
not
issue for
alleg
trial. The
right
negligence
according
to fluctuate the
ed
waters
the defendant. Under
public
system
business,
to
of
necessities
pleading,
federal
of
this was
whatever fluctuations were caused
sufficient.
Even if defendant had an ab
upon
lands,
right,
bed or
principle
these
is
solute
consistent
under the
that one
language
neither with the
used nor
must not
use even vested
purpose
grant.
requiring
clear
wrongfully
a
such
negligent
An in-
a manner
teresting case,
ly
injure
another,
is
to
illustrative of
there was a cause of
public
absolute needs
action
unquestionably
service
stated.
This
plants
policy
genuine
and the
of a semi-arid
made
state
a
issue of material
fact
Hale,
supra,
5.
See
affidavit of
A.
J.
can be deemed a nuisance.”
Idaho Code
226 F.2d
665.
52-108.
§
n
“Nothing
56(d)
6.
which is done or maintained
7. Rule
Federal
Rules
Civil Pro-
express authority
cedure,
under
of a statute
28 U.S.C.A.
disputed
upon
a
to
plaintiffs were entitled
issues of fact
upon which
may
litigation depends.”13
outcome of
jury.8
how convenient
No matter
ought
procedure
right
not,
the trial This
and of
defendant
is
been
have
by jury
be,
disposed
case not to
whole
a
a trial
substitute for
to have
court
judge.
up
finding
the or
a claim
established
Plaintiffs had set
fact
defendant,
negligence
respect
affidavits
of defendant
uncontroverted
through
ruling
to
error.9
have been
release of water
their
land. The
controverted the
defendant
was vested
trial court
The
negligence.
if
trial court be
Even
federal Consti
with no discretion.
recovery,
lieved
there was no chance
right
gives
jury
in a
trial
tution
a
try
he was bound
thus
out the issue
This
law action.10
issue in a
contested
though
contested.14 This
true
is
even
right
whit
positive
not be
and should
is
the court
believed some one
away by
contested issues
decision of
tled
issue was decisive.15
hearings
judge
in camera be
following
Instead of
insist-
the course
summary
rule
fore trial.
upon by
company,
power
ed
power
in non-
even
a
does not confer this
finding
the trial court
entered
order
remedy
invoked
*The
can be
case.11
grant binding upon
the easement a valid
genuine
only
complete absence of
when
plaintiffs. The facts set out in the affi-
appears
rec
the face of the
fact issue
davit of Hale as to the
summary judgment pro
ord. Resort
dam in the same manner as when the
any
doubt
is futile where there
cedure
accepted
was made were also
a
All
as whether there is
fact issue.
uncontroverted because the court refus-
point
doubts
must be resolved
any
allegations
ed to strike
of these
against
moving party.12
Rule,
This
affidavit,
holding
thus
them estab-
limitations, was not
on account of these
deny.
lished
failure to
This was a
intended
be used as a substitute for
holding
grant applied
to the
regular
trial of cases where “there are
D.C.,
F.Supp.
Barrett,
11. Porter v.
8. “The defendant’s denial of
essential
35, 43.
allegations
complaint,
even if
interposed,
other
were no
defenses
remedy
12. “Resort
where there
is a valid defense on which it has a
doubt is futile because it is now
Zig Zag Spring
to be heard.”
Co. v.
pre
well settled that all doubts on this
Spring Corporation, D.C.,
Comfort
89 F.
liminary
against
issue must be resolved
Supp. 410, 413.
moving party.
The rule can be
purpose
made to fulfill its
if it is in
authority
9.
is no
“There
the court
only
appropriate cases,
voked
summarily try the factual
in ad-
issues
Zig Zag
these are not too numerous.”
vance of trial on the affidavits and the
Spring
Spring Corpora
v.
Co.
Comfort
depositions
Zag
Zig
of the witnesses.”
tion, D.C.,
F.Supp. 410,
414.
Spring
Spring Corpora-
Co. v. Comfort
tion, D.C.,
F.Supp. 410,
13. Broderick Wood Products Co. United
States,
Cir.,
forgotten that,
.10
195 F.2d
10. “It must not be
ac-
law,
by jury
disputed
tions at
trial
belief,
14. “A surmise or
no matter how
questions
guaranteed by
of fact is
reasonably entertained,
party
that a
can-
Constitution,
questions
and that even
prevail upon
trial,
justify
not
will
*9
arising
questions
involving
law
in a case
refusing
day
him his
in court with re-
satisfactorily
of fact can be more
de-
spect to material
issues which
fully
cided when the facts are
before
clearly
sham, frivolous,
shown to be
or
possible upon plead-
the court
than is
obviously
so unsubstantial
that it would
ings and affidavits.” Stevens v. Howard
try
be futile to
them.” Ford v. Luria
Cir.,
Johnson
4
D.
181 F.2d
Trading Corporation, Cir.,
Steel &
8
“ * * *
purpose
394.
is not to cut
the
of
rule
the
Landy
Silverman,
F.2d
litigants
off from their
Cir.,
16. Rule
Procedure.
Federal Rules Civil
* * *
doubt,
plaintiff’s
all
up
travel.
We think
a
as
fetish. There
remaining
pleading
contention
as to the
counsel understood that
wrongful
proof
burden of
well founded.
was a
not
issue was whether there
accepting
appearing
quo
negligent omission,
act or
the locus
right way easement,
is a
in order
true that
released
the water had been
charge
with
the owner
the easement
defendant at
dam in accordance
regular
trespass,
with
with
thereon,
on account of work
custom and in accordance
grant
easement.
the owner of the servient
the terms of the
showing
estate has
onus of
but,
impaneled,
after
A
was
proper improve-
the work
not a
was
production
evidence, the
of considerable
road,
ment of
made
was not
granted
de-
court
verdict for
a directed
regard
rights.
with
due
for his
judgment,
fendant. From this adverse
plaintiffs appeal.
interests of both
servient and
dominant estate must be considered
prove
Plaintiffs did
defend
in the use
an
made of
easement.”
any wrongful
negligent
ant
or
did
act
page
tion show purchased right had to defendant negligent upon defendant. of the action up back water from a dam and overflow definitely advised Plaintiffs lands, right conveyed by which negligent something proof court that damages instrument, written could not handling wrongful the de- in the against performing be it awarded for right plaintiffs’ property fendant’s right purchased per- the act it had a to required in order show land would be put concretely, form.19 To more if de- it company grant. power abuse bought right fendant had to erect a purchased paid for the ease- had twenty height dry dam feet in in a creek complain of could not ment. Plaintiffs precaution purchased bed and out of a upon servitude incumbent the use of this' flowage property real easement full the defendant their land bed, up might several miles be in the laid down conditions extent contingency covered in the of a cloud- light neces- instrument burst, upper owner could not recover public Plaintiffs’ interest. sities damages even if the basin filled first refusing the instru- to mention device of twenty-five years with water after proof proving inci- in their ment overflowed his land. No one would con- right of normal use of the dents reasonably recovery tend that a be could not held would which the upper if allowed even landowner had avail.18 419, 625, or “ 4 S.C. S.E.2d 627. 18. If the had been claimed easement ** * presumed grant prescription, it is to be it instead of grantors question was, assented bear ail loss would existed * * * incidentally only resulted have been and defendant required not rights prove from the exercise of existence of the those in a proper easement, manner.” Lone Star Gas v. nature and extent. Co. its Hutton, Tex.Com.App., justifies 19, party 58 S.W.2d 21. under an “Where a act “ * * * grantee by prescription cannot be held burden is easement upon responsible damages only exercising prove, for him that an ease- ** right Pike-Floyd exists, *.” Coal but also it is broad Co. v. ment Nunnery, Ky. 805, thing 614, enough he S.W.2d has cover appellant Sons, 615. “If did what v. H. Hood & Fortier P. done.” right 256, Inc., to do under the in a 30 N.E.2d lawful Mass. * ** way Roediger Cullen, also v. held liable 257. See cannot damages.” Corpora- Elk Horn P.2d Here the Coal 669. Wash.2d Johnson, grant by Ky., tion v. written 249 S.W.2d .establishment phase. given left no “It also instrument in the support mines, deed to remove the “ ** * complaint where a is claim- complain plaintiff cannot of its ac- something right- embraced fhe doing.” tion in so Case Elk Horn of-way, reasonably thereto, incidental Ky. Corporation, Coal 276 S.W. standing in Court that * * has 573 574. Jones v. Pow- Carolina South *12 according release water at to the fact the dam defendant warned procedures. defend- essential if the There is no foun- overflowed would be land negligence be to dation flashboards here for claim of or allow the did not ant wrongful re- impounded be water to act. raised and the re- supposititious case But this leased. question It is true that a direct and would involve a cited above negligence normally jury, for the invasion, case whereas in the intentional plaintiffs attempt prove here made no to affirmatively negligence be at bar must by They the issue defined the court. proved. attempt prove made no to that defendant right negligent used proof in a considerable There was wrongful Every manner. circumstance be land had never overflowed proven compatible in the record with a operation of defend fore from the proper normal and use of the easement plant held ant’s and dam. The court predecessors plaintiffs which the immaterial, was. The this evidence as it granted defendant, by plaintiffs to which by lost nonuser easement would not be are also bound. No evidence was ten years.20 twenty-five period even for a showing dered that defendant had done There was no evidence offered anything right other than what it had a positive fact that contradiction to do. No causal connection was shown immediately there had been an overflow any between act of the defendant and the 22, 1926, prior in as the December damage overflow, any much less to suf strument As the defendant had recites. by plaintiffs. fered court was trial right purchased plain overflow directing correct the verdict for de conditions, tiffs’ such it had lands under fendant. right make use of the easement. of overflow was not is inherent in what has been said only pertinent majority issue. The issue was the that of the Court do not resulting plaintiffs produced any compe- amount of fluctuation from the believe operation plant proof any- of the dam and of the tent that defendant had done defendants, thing negligent though wrongful, which no evidence even proof introduced. There was no that the the issue were not deemed to have been may affidavit, overflow not have been caused defined the Hale the amend- breaking jams releasing complaint ice water in ment of the and the declara- tributaries of Bear between the tion of the court. plaintiffs.
and the lands of Affirmed. purchased Defendant Judge POPE, (dissenting). Circuit deposit ice on the lands majority opinion I if think that operation plant. the normal of its Plain is allowed to stand it will be cited prove deposited did tiffs ice so relating authority for a rule to affidavits was not the cause of the overflow. Fur support summary filed in of motions for ther, plaintiffs prove did not contrary judgment which is to much flowing water over the ice came from a said both in that has been this and in release of defendant or from one of the other circuits. tributaries the Bear. There were several plaintiffs’ miles distance between the dam To amended al- boundary negligent plain leging and the of the lands of of defendant’s (and tiffs. Defendant is not shown to holds have dam the court pleading), control of conditions thereon and sufficient filed an including nothing except “separate is shown to have done therein as a to answer * ** proved 20. “An easement cannot created deed is not deed of be extinguished by proof only defeated mere nonuser.” been Parsons v. York, nonuser, long New 269, N. H. & R. no matter how 216 Mass. such H. 103 N.E. 695. “It seems to nonuser have continued.” 3 Powell p. (1954). Property, well settled that an easement Real § created *13 misreading allegations ply im- that court's order and the defense” and additional porting something predecessors court and it which the plaintiffs’ executed into the assuredly say. The below most did not the release defendant delivered to exactly written, reproduced order, setting easement, haec verba. as in it forth margin, operative in words the with the summary- for the motion Then followed majority emphasized.2 of The the order by affi- accompanied Hale judgment, the asserting opinion amends order this affidavits. filed counter davit. Plaintiffs part motion to the which denies the that ordered Upon the trial court this motion an affidavit was strike from the Hale only granted judgment summary be that acceptance “as uncon- of that affidavit appeared part, with- specifying it that in- thing. did no such troverted”. The order plain- controversy “that out substantial pai’t mo- referred to a This of the order the release are bound tiffs * * * which, shows, tion strike as the record to agreement. The easement “begin- all affidavit was to strike sub- summary judgment denied be will ning paragraph to end of the the ject reservation.” the above ¡all the was affidavit.” This of affidavit indicates, majority opinion it except name, and occu- As Hale’s residence if court had might part sought pation. been better The to be stricken just words, many what specified, part in so writ- included the which set out the remaining trial were. I for the issues course motion to ten easement. Of nothing agree turn on should here properly was denied. There were strike that point. informality any strike, Necessar any at this other motions to language were, separate parts ily in the no motion to strike issues was say, judge, whether defendant To as do the ma- of the affidavits.3 the trial deny- easement”, by properly jority, court, and whether it “abused the neglig wrongful “anything ing affidavit, such an a motion to strike had done adjudication thereby makes ent.” majority true, everything place where the in the affidavit is is to first my error is in sim- opinion serious unthinkable. falls into mind only duly necessity from the arises not considered tbe been filed This Now, therefore, from easement but the Court the written Court. terms general is. judgment opinion summary legal principles as well. suggested subject express granted part as should he easement argument “provided fluctua- oral in that future at hound condition: agree- hy heretofore and easement not exceed those release shall tions occurring operation care of said Onei- This can be taken in the ment. the time summary right granted was a of the trial. The Plant.” The da subject qualified will denied for be “an easement one: above, right nipulation ma- In view of-the as aforesaid the above reservation. to continue portions of of motion strike certain the flow its natural and fluctuation support passes of J. A. Hale the aflidavit as it river said summary judgment through along will owned the motion lands channel * * * denied, grantors.” it is so Ordered.” Thus there necessarily question of fact wheth- strained to me to' be a what 3. In seems January, 1949, magnify did fluctuations into those the Hale aflidavit not, er effort to says: opinion something 1926] Dec. oc- [before those it “exceed curring Oneida in the said ex- of Hale was an aflidavit “Here the I must Plant”. the answer.” admit tension this sounds something noted hereafter as well as And as new to me. like majority’s quotation 7(a) from Jones v. of it? Under Buies what But infra, even 8(d), Power Carolina as. South it must be “taken denied”. strictly spirit pre- calling Again, within fluctuations “the if the arise, liability limits, opinion says, procedure”, stated “The the if trial “ proof, is exercised ‘in a negli; but to easement used aflidavit is not Hale define contrary gent manner’.” or wanton think the issues.” I the trial court majority, as- above-en- the suredly “Order —The summary not use the Hale affidavit a motion did cause filed titled judgment, majority only opinion argument proof. was had to following Court, or- treats so. Court submitted. briefs have briefs Said dered “ ** Again press opinion misstates both condition of the easement: provided says ex- record law shall not and the when future fluctuations “ * * * occurring hold- ceed in the refusal thus those heretofore to strike: * * * deny.” operation plant.” them failure to of said established issue, issue, not That This court with a situation like other dealt *14 upon distinguishable ordinary case, v. in Hoffman not from this must be tried Cir., testimony Trading Co., upon Babbitt affidavits but sworn Bros. subject open affi- of filed in F.2d 636. There defendant witnesses court none. usual davits. Hoffman filed tests cross-examination Plaintiff credibility. said, page 43 F.R. F.2d 638: other Rule This checks court duty telling truth of C.P. “The were under no Whether Hale was Hoffmans question submitting under our court not a evidence to the was their system by upon affidavits, were and the was for determination affidavits jury. stated as to the His affidavit stated conclusive facts mine.) January, 1949, famil- (Emphasis dis- month “He was therein.” obviously iar the Oneida in Hoffman case trict court plant.” affi- was he? stated in the Just how familiar held that the facts davits, alone, most en- defendant were Cross-examination could be filed lightening, deny.” would failure to We the cross-examiner “established accuracy Now, trial held error. if the entitled ascertain the to be way, regard purported memory for his to how the court the same as here held operated prior require December our decision in Hoffman would 22, 1926. Neither court nor reversal. the trial accept this has court Hale’s here, for more But the situation even upon point. affidavit stated in As that, requires reasons than reversal. Liquidating Corp. Brownell, F.A.R. on The conclusions Hale’s affidavit “although Cir., 375, 379, 209 F.2d whether the fluctuations on Janu- these support in affidavit filed motion for of a ary, greater 1949, days were than those summary may be considered prior 22,1926, (see to December footnote ascertaining purpose for the whether 1, supra) directly controverted presented, an issue of fact it cannot the circumstances set forth in counter deciding be used as a basis for the fact by plaintiffs. affidavits filed These dis- issue.” unprecedented closed the character and If, opinion asserts, as the the trial flooding January extent of on these accepted in its order court the statement days, and other circumstances similar fact, of Hale as an uncontroverted those related I hereafter where shall de- for court erred the reasons stated in testimony plaintiffs scribe on this Trading supra. Hoffman v. Babbitt point.4 If, order, as I view the the trial court merely ruled “that my bound But whether brethren here have agreement”, the release and easement erroneously read the record of trial remaining tried, and ordered the issues something court’s order to include upon then the affidavit of Hale the issue decide, the trial court did not fact of how much fluctuation occurred not, I as view essential and funda- compared how it with earlier fluctuations their mental error decision. For proof must be laid aside as no whatever. light, say, viewed in either is to If was mine, functus officio. record theirs or discloses that genuine upon Notwithstanding single there was a issue of fact witness was whether at the on time of the called or testified behalf of the de- violating upon ex- fendant issues here trial,5 testimony plaintiff, which would warrant This was 5. The record shows who disbelieving statement, propounded interrogatories Hale’s had to de- given on Hale, had the stand. under he fendant Rule called case had the the fact that -Haleaffi- attention to majority opinion treats testimony as it oral only proof, been tried as establish- davit not been, Says affiants should have “the facts. “uncontroverted” probably exam- Hale, stand be called to' the opinion: based “The affidavit Here posi- knowledge, ination and cross-examination.”
personal contains also presumably interested, Hale, an incident basic tive as to this assertion * * ap- witness, defend- biased never called thereof No direct denial *. examination, testimony. ant, subjected nor to cross pears in the affidavits * * * filing what the court characterizes uncontroverted also affidavits”, furnishes the at “uneontroverted fluctuated fact that water been can- This exactly basis for a directed verdict! manner same the dam in ** * right. during For, Arn- *15 not be as stated the had been as it Porter, Cir., grant.” 469: v. F.2d stein “If, period prior the date hearing testify, parties after both find “uncon- this does the court Where denials, jury defendant’s the disbelieves testified. No witness so fact”? troverted can, facts, reasonably from such infer discloses, takes opinion the court As the credibility that, access. It follows is from and affidavit all from the Hale unavoidably genuine involved, of a issue the face flies in This no other source. presents material cred- fact itself. With as that such of of a multitude decisions ibility factor, plaintiff a is entitled vital Trading Co., v. Babbitt Bros. in Hoffman jury to a trial where the can observe the page said, supra, 203 F.2d we where testifying. witnesses while Plaintiff duty under no “The Hoffmans were 638: deprived must not be the invaluable submitting the court evidence to of upon affidavits, their privilege cross-examining defend- the affidavits were and the credibility’ ant —the ‘crucial test of —in stated to the facts conclusive as presence jury. Plaintiff, a court, Here, in deference therein.” lawyer behalf, on such examina- accepted rule, said: should have to the damaging tion elicit admissions duty of were under no “The Griffeths submitting defendant; important, plain- from more court evidence their may persuade jury, observing tiff affidavit, affidavits, upon and the Hale testifying, defendant’s manner when that remaining trial, was upon the issues unworthy defendant “ of belief.” language all.” use not evidence at To mere ‘[T]he fact that the witness is Brownell, Corp. Liquidating of F.A.R. interested in the result of the suit supra, “it be used as a basis for cannot require deemed sufficient to the cred- deciding the fact issue.” ibility testimony of his submitted ” overlooking Wholly in statement our jury question as a of fact.’ Sar- Trading Co., Bros. Hoffman v. Babbitt Corp., tor v. Arkansas Natural Gas plaintiffs supra, “were there 620, 628, 724, 729, U.S. 64 S.Ct. 88 L.Ed. submitting duty of their under no evi- 967. affidavits,” upon dence to court saying: right my I in view that the here reverses If am case court testimony positive be decided is the direct and state- must “There * * given open court, Hale, witnesses, in above set out *. ment of affidavits, making affidavits from then filed no aid whatever Plaintiffs problem amount of our is not hard fluctuation solution of issue of ** Hoffman case we record shows a In the called find. The substantial summary judg- stand, support aof motion for Vice-President defendant’s developing very purpose that Hale had made limited of de- after ment for and interrogatories answers, exists, termining read the whether an issue fact into record. not be used None of these can to decide con- but answers any Lacy to a denial of the testi- tested issue fact.” v. United amounted plaintiffs. Cir., given States, mony on behalf of the 207 F.2d may be received in an affidavit “Such registered jury suc- jury, when upon which the the thermometer case eight zero, cessively, zero, might (a) fluctua- properly that the three above find below, above, brought below, in dates here thirteen four tions about on above, 3d, 4th, 5th, 2d, 6th two on the [before 1926] did “exceed those days plant, January. occurring operation” On such and 7th of merely (b) harder. stream freezes event negligent in a exercised its easement unprecedented and ex- character manner. flooding permits tent in itself way something sufficiently dis- inference that new the Plaintiff’s evidence being of fluctuation could control was tried. closed facts from which flooding plaintiff’s Witness (a) after testified for the witness infer that the flowage by plaintiffs January 7, had was caused that no such ever lands on occurred testified that defendant made before. Some the fluctuations which Creek;7 years (b) earlier that this the water overflowed on the flow of Bear extraordinary unpre- sloughs, low overflow, had been some exceeded, nothing Others, cedented, like both extent this.8 far anything damage, like families, and members their resultant before; (c) who occurred lived on this land from ever *16 built, time the dam these those author- was testified fluctuations exceeded there by was never ized the such before. written easement. suggestion majority opinion Now, if we consider that these “uncon- proof that “There was no that the over- troverted affidavits” are discarded as by they impossible flow not have been caused ice be, say should it is to releasing breaking jams in jury and water that the were not warranted in in- ferring tributaries of the Bear between the that the fluctuations exceeded something plaintiffs” by and the lands of those authorized the written ease- jury disregard, to Indeed, the would be free ment. the Hale affidavit on jury country sought a which in the cold summary judg- lives which defendant too, knows, that and we do such tribu- complete ment shows a on its mis- face unregulated taries, by dams, apprehension do not emit the terms the ease- during January days granting portion freshets like these ment. The thereof proof clearly throughout period January was suf- causation the from 1 to jury. carry January permits ficient to the case 7 and the whole chart by 7, operated Exhibit first furnished was the inference that the defendant interroga- response in to the defendant and controlled its dam in that manner showing tories, throughout period flow is a chart how the the in here controver- past sy. rising falling of the water dam varied from the This constant and day day. chart This was a made auto- the water in the stream is from manifest matically recording testimony plaintiff device a the of the who related plant superin- in showed the flow certain units. of water his conversation with the pointed flow This discloses that the was lessened in tendent which he out that the storage high morning and of water behind the dam water was not there night accomplished during up evening. then each but it came during day was released the water This conversation was third or fourth greatly January plain- and the flow increased. Thus and at the time when during night January 5-0, 1949, vainly get attempting tiff was the su- following midnight, perintendent enough in the hours the flow to take interest was 80 units but the flow had at 8 A.M. come down and take a look. jumped it to 585 continued at units approximately 8. “A. On until afternoon some low lands rate tapered up, yes water would back when the flow was shut down it would back — up sloughs during we off to 93 into the low land that call afternoon units approximately blocking the channel and 80 units. 5 due to ice But got evening being o’clock river but never on the land.” the flow re- it any flooding jumped “Q. leased units continued Was there land to 623 evening tapered high through during No, sir, those winters? A. it again midnight. off to 80 units This blocked some but didn’t run on the land pattern shown to have continued like that.”
678
right
its
to the easement or
and exceeded
violated
for the
“an' easement
creates
manipulation
we as-
if
conditions and limitations even
continue'as
aforesaid
proof
river
was
sume that the burden of
flow said
fluctuation
pleaded
plaintiffs.
passes
channel
natural
When
it
in its
*
* *
stating
its
through
along
owned
so-called “third defense”
the lands
added.)
under
(Emphasis
easement and
of acts
its claim
the Grantors”.
definitely proceeding
easement,
previous fluctuations,
wa-
it
If
carried
theory
level,
pleading
affirm-
say
that it
ter
sea
above
feet
granted
de-
ative defense.9
was an affirmative
would mark the limit
“
right
passes
Loosli
fense. Such is
Idaho rule.
of fluctuation
‘as
Heseman,
through
along
the v.
162 P.2d
66 Idaho
natural channel
feet
lands’
393.10 For when
showed
”. A fluctuation
grant.
notwithstanding
protestations
something
de-
their
would be
outside the
lands
flood
fendant continued to
their
that,
wholly apart
as-
But
from
even
suddenly re-
manner
in which
suming
granted right
measured
larger
leased
amounts of water controlled
quantities
jury,
dam, a
released at the
by it, plaintiffs
prima
case
facie
made
watching
hearing Hale,
after
de-
damages.
& Mit-
v. Cobbs
Crawford
cross-examined,
meanor,
seeing
him
Co.,
P.
chell
Or.
P.
testi-
would have a
to disbelieve
16; Taylor
Michigan Elec-
&
Indiana
mony might give
affi-
line with his
he
Co.,
tric
Mich.
N.W.
davit. For the
showed and
record
L.R.A.1915E,
Wargo
294;
V. Connecticut
drawn from that district
Light
Electric
& Power
127 Conn.
know
other cold winters
pleading
629, 18 A.2d
924. The
years
after
dam
first built
*17
rights
proof of
an
was
under
easement
1926,
prior
22,
in 1913 and
to December
up to
This was
defendant.
its burden.
given,
could
when
easement
the
was
infer
there
that
those cold streams
complete
if
lack
But even we assume a
was
in the
Never before
ice
river.
proof
that
viola-
there was
actual
the
water
flowed
these lands to
over
easement,
tion of the
of the
terms
washing away
depth
armpits,
man’s
of a
I
was
think
abundance of evidence
haystacks
cattle,
drowning
and it is negligence
part
on the
of the defendant.
a fair
inference
the fluctuations
that
Indeed,
my
to
mind the
shows
evidence
kept
were
thus
moderate because
shocking degree
negligence
a
amount-
regulated
flow
from the dam was
ing
disregard
rights
to a ruthless
of the
view,
these weather and
ice conditions
plaintiffs.
January
4,
of the
3
On
regard
and with a reasonable
plaintiff
1949,
noticed the
flood-
unusual
situation of the farmers below.
ing
river;
of the
it was on the southern
pre-
passed
end of his
and had
Furthermore as the case was here
Cushman,
He
fence.
called
sented defendant
call
defendant’s
did not bother to
manager
telling
single
superintendent,
explain
him
witness
situation
flooding
ground
explanation.
that
the water was
which cried aloud for
damaging
my
presented and
his fence. Cushman said
that
evidence
view
was;
they
jury upon
ques- he did not think it
never had
made a case for the
any
in that
section before.
tion of whether
the defendant abused
proof
defendant,
wholly
piece
pleading
the burden of
should
9.
it was
de-
As a
prin
plead
fective,
For a
be there.
discussion of
did more than
for it
no
ciple
allega-
Fleischman,
see United States v.
no
339
easement. There was
written
362,
739,
349,
906;
question
U.S.
70 S.Ct.
L.Ed.
tion
on
dates in
de-
that
Preliminary
Thayer, A
Treatise on Evi
caused
more fluctuation than
fendant
Law, p. 370; Wig-
easement,
at the
dence
Common
that authorized
or that
ed.,
Evidence,
2486, pp.
complied
on
§
more
3d
with the conditions stated
on the
Further
rule in Idaho
to 276.
therein.
Co.,
v. Twin Falls
see Johnson
Canal
Where,
here,
167 P.2d
Idaho
and Kiesel v.
the relevant
facts
knowledge
peculiarly
Bybee,
14 Idaho
P.
within
here,
Plaintiff
to come
dence
asked Cushman
was furnished
interrogatories
situation;
response
plaintiffs’
look
too in
Cushman
busy
throughout
period
Plaintiff
and did
a car.
shows
not have
that
car,
only
controversy
offered
and time
to take him in his own
here in
it was not
creating
parties
daily
appointment
to meet
made an
natural
fluctuations
morning.
company
actually
at the
flow of
office the next
the stream
re-
leasing
plaintiff
day
January
When
office
went
Cushman’s
each
from
3 to
again
January 7,
very
plain-
he told
water
Cushman
at the
time when
flowing
ground
destroy-
informing
tiffs
over the
defendant of their
troubles,
quantities
will
flood
fence. Cushman said:
“We
substantial
agreed
parties
check
excess of
into it” and the
then
the natural
flow of the stream.
night
to meet on the Bear River
utterly
I think that
the trial court
flowing.
near where
At
the water was
disregarded
jury
in the
appointed
place
time and
Cushman
proper
exercise
functions
to draw
appear.
did not
Plaintiff
talked to Cush-
negligence
reasonable inferences both of
morning
telephone
man the next
on the
and of the abuse of the
from
easement
why
ap-
and asked
the latter had not
plaintiffs.
evidence adduced
peared.
replied
Cushman
that he looked
judges
The refusal of trial
even
morning
top
from the
of a hill with
appellant
judges
permit
jurors
to ex
glasses
any
field
and he did not see
water
applying
ercise this function of
reason
there. Plaintiff
told him that
the water
drawing
and common sense in
inferences
morning;
was not
there in the
proven requires
from facts
constant cor
up
evening.
came
Cushman re-
rection at the hands of the courts of last
plied that he looked “this over with field
resort.12
“It
is not
the function of a
glasses
and he did not see
water”.
conflicting
court to search the record for
very
Cushman did not seem
concerned.
circumstantial
evidence in order to take
majority opinion
away
As I understand
the case
theory
from the
on a
proof gives
it does not
equal
support
soundness
cases
collected
Jones v. South Carolina
inconsistent
and uncertain
inferences.
point
judicial
Power
S.C.
S.E.2d
focal
review is the
*18
628,11
prin-
particular
which are illustrative of the
reasonableness
of the
infer
ciple encompassed by
the maxim —sic ence or
jury.
conclusion drawn
utere
ut
tuo
alienum
jury,
non
laedas.
court,
It
is the
not
See
which is
Pierce,
fact-finding body.
Cal.App.
weighs
in accord Baker v.
100
the con
224,
tradictory
8,
2d
ultimate conclusion as
very to select function is essence of its conflicting among inferences from most it considers
conclusions that which * * * conclusion, That reasonable. negligence, causa whether it relates matter, cannot factual tion or other ignored. to re be free Courts
weigh aside the and set the evidence jury jury merely because verdict inferences have drawn different could judges feel or because conclusions J., Moroney, Newark, Martin D. N. are more reasonable.”
that other results Stone, Jersey City, J., for Leonard N. R. Peoria & P. U. Tennant v. appellant. 409, 412, 29, 35, 88 L.Ed. U.S. 64 S.Ct. Ritger, Jr., Newark, N. J. Frederic C. Atty., Jr., (Raymond Tufo, Del U. S. judgment I think should be Newark, J., brief), appel- on N. for a reversed and cause remanded lee. trial where the issues submitted rightly they to a in whose hands BIGGS, Judge, Before Chief belong. Judges. GOODRICH, MARIS and Circuit
PER CURIAM. charged appellant, Amorino, conspiracy with a to commit an offense against United States violation of Sections 371 and Title 18 U.S.C. guilty Found 1 of Count the indict- ment, grounds he asserts five for reversal UNITED STATES America He al- conviction. leges the first count the indict- AMORINO, Appellant. Albert ment does not state facts sufficient No. against an offense constitute the United States; Appeals States Court of there was a United failure to estab- Third Circuit. conspiracy him; lish that involved *19 alleged the evidence of co-con- Argued Oct. spirator against was admitted him when Decided Nov. been; it should not court refusing erred “in to consider the re- witness, cantation” of this denying court erred motion judgment acquittal. An examination of the record and con- argument sideration of the briefs and prejudicial counsel us that no convinces and that error was committed the court applied properly below the law to the facts.
Accordingly, the of the court below will be affirmed.