174 P. 602 | Idaho | 1918
This action was brought by the Newport Water Company, a corporation, against appellants William G. Kellogg and Lillie Kellogg, his wife, to obtain a perpetual injunction restraining appellants from further extending and enlarging a certain ditch, and a mandatory injunction requiring them to fill the ditch already constructed, and for damages. The respondent company was organized for the purpose of supplying water to the town of Newport, part of which is in the state of Idaho and part in the state of Washington. On November 25, 1904, appellants conveyed to the respondent, by warranty deed, certain real property, upon which respondent thereafter constructed a reservoir, together with wells, ditches, pipe-lines, etc., for the purpose of diverting and impounding certain subterranean water in that vicinity. This water was then conducted from the reservoir to the town of Newport and there sold and distributed to the consumers in the states of Idaho and Washington. Early in the year 1915, appellants constructed a ditch within a few feet of the boundary line between their land and that of respondent, and respondent complains that the construction thereof has caused the water to percolate and flow out through the gravel and soil and into said ditch, and thereby has greatly reduced the value and supply of water to respondent’s irreparable injury and damage.
Inasmuch as the record fails to show any action of the court upon the demurrer, the objection that the complaint does not state a cause of action must be considered here in the same light as if the sufficiency of the complaint were attacked after the judgment. In such a case every reasonable intendment is indulged in favor of the sufficiency of the complaint, and all inferences of fact which may be drawn from the facts alleged must be deemed, within reasonable limits, to be alleged in order to sustain the judgment. While the complaint in the case may be deficient in the statement of the ultimate facts relied upon, still, viewed even in the most unfavorable light, it contains a defective statement of a good cause of action. (McCormick v. Smith, 23 Ida. 487, 130 Pac. 999; The Mode, Ltd., v. Myers, 30 Ida. 159, 164 Pac. 91.)
Appellants assign as error the action of the trial court in admitting in evidence, over objection, respondent’s Exhibit “N.” This exhibit was a water license issued by the state engineer pursuant to Rev. Codes, sec. 3261. It granted to respondent a perpetual right to two cubic feet per second of water to be conducted to the towns of Newport, Wash., and Newport, Idaho, for the purpose of fire protection and domestic use. Rev. Codes, sec. 3262, makes such a license prima facie evidence as to the water right. As the license on its
There are several specifications of error which attack certain findings of the court on the ground that such findings are not supported by the evidence. In this case there was no motion for a new trial, the appeal being from the judgment alone. ' By Rev. Codes, see. 4434, 1911 Sess. Laws, chap. 119, p. 379, it is provided that the “transcript .... shall be deemed adequate to present for review .... any question of insufficiency of evidence which may afterwards be properly presented by specification of insufficiency in the brief on appeal.” It is seriously doubted whether a mere specification that a .finding is not supported by the evidence, without designating the particulars in which the evidence fails to support the finding, is sufficient under the statute. (State v. Maguire, 31 Ida. 24, 169 Pac. 175.) However, in this case we shall treat the objection as though it were intended to specify that there is no substantial evidence in support of the finding. We deem the objections without merit. The findings which are not based upon admissions in the pleadings are all supported by substantial evidence introduced at the trial.
Appellants complain of the judgment against them for $100 damages, on the ground that there is no allegation in the complaint sufficient to support a judgment for damages. The complaint, however, contains a general allegation that the “plaintiff has been greatly damaged and injured by reason of the action and conduct of the defendants to the amount of more than $5,000.” This can be considered only an allegation of general damage. The judgment for $100 is sufficiently supported by the pleadings and the evidence introduced at the trial. (Tucker v. Palmberg, 28 Ida. 693, 155 Pac. 981.)
Appellants contend that the court erred in failing to find
The last assignment is that the court erred in failing to find that the right of appellants to the water being used by them for irrigation purposes is superior to the right of respondent to convey such water outside the state of Idaho for sale and distribution. The court found that at the time respondent purchased from appellants the lands described in their deed for a reservoir site and for the springs, and percolating waters and subterranean flow therein, it was understood and agreed by and between them that appellants were to sell to respondent, and that respondent was to purchase said land for the special and sole purpose of procuring the water, springs and subterranean streams and flow of water therein for the purpose of impounding the same and selling and distributing the same to water users and consumers. The appellants permitted the respondent to expend large sums in making improvements for the purpose of impounding the waters for sale to its consumers. Appellants disclose by their affirmative answer that at the time the land was purchased from them by respondent they knew that the purpose of respondent in purchasing the land was to develop water for distribution and sále outside of the state of Idaho.
•The judgment is affirmed. Costs awarded to respondent.