Village of Peck v. Denison

corpo municipal PECK, a OF The VILLAGE Idaho, Plain of the State of ration tiff-Respondent, Denison,

Roger and Louise DENISON Defendants-Appellants.

No. 10159.

Supreme Idaho. Court

Jan.

Rehearing 4, 1969. March Denied Felton, Lewiston, H. for defendants- J.

appellants. Blake, Feeney, Lewiston, Givens & plaintiff-respondent.

McQUADE, Justice. produced at the trial estab- evidence controversy following lished the A facts. ownership arose of certain over thirty- arising upon approximately to water a mile five acres of land about one-half re- (hereafter west of the of Peck land is Village). This ferred to as present at the appellant owned Denison referred to as time and is hereafter through the Running “Denison land.” Creek, the waters is Bear Denison land empty ultimately Clearwater into and on Denison land River. Within rocky Creek there side of Bear north gully substantially brush-covered sloping down- steep sides draw with gully is known This ward Bear Creek. officially, Kayler locally, as but not named are three gully In this Creek. plaintiff’s and on designated in the record “C,” “A,” “B” and exhibit 3 as spring B mid- gully, being uppermost in the lower- spring C gully, and way down Bear Creek. nearest gully inmost any man-made interference Without springs flows works, these the water especially Creek, Bear into gully down to be appears Such weather. wet Kayler Creek. state of natural November, 1965, history Denisons of man’s use of these Bear chased Denison land received a Creek is The Denison follows. warranty exceptions. deed without Some- homesteaded one Adams, later, grandfather January, what than a Kayler. more month of James title in- Kayler remained in the Denisons received the family the from 1899 Kaylers report until the surance which noted two 1937. The met with officials relating ceptions Village’s of the the Village in of record to 1909 and created agreement rights on Village under which would water the Denison denied the land. C, knowledge Village’s have use that spring of the sub- he had the claim water from ject Kaylers’ springs to to and B, the use one of its water from A but ad- inch water knowledge pur- if springs other not found. mitted he had before the were Kaylers Since spring the spring found chase its claim water from another to issue, here in they of C and Bear These are the facts abandoned the whole Creek. spring Village, C relating rights. to the the to the water and Denisons do not right Village now the contest the easement, As the it is to uncontroverted to the spring Likewise, water the from C. Village employees agents the and went Village acquired by agreement the 1909 the any they on the Denison in land manner right augment by to supply its of water necessary equipment and chose with all for tapping Creek, Bear right which is not also the purpose servicing system. their by contested the Denisons. Village In the the In 1912, Kaylers gave Village designed preserve supply, to its water permission oral develop B. In spring to Village the district court decreed 1919, Kaylers gave per- Village oral acquired right had take all the to water mission develop spring to A. In arising A, springs Kayler from and in B C Village actually began using water from Creek; Village acquired had Bear periods. dry year Creek in Since the right supplement supply to its of water of initial respect use springs to each of tapping Creek; Village Bear had A, B C, Village has claimed and acquired right its to maintain water used all them, flowing the water from land; upon works the Denison that the Vil- except periods turbidity losses lage acquired ingress right spring A and minor incidental losses. egress the Denison land for all over Village water works remain the same now poses necessary operate to maintain they as thirty-eight years ago and quieted water title works. The court consist essentially of an earthen dam at Village permanently these rights spring A, pipe from which a runs down enjoined appellant interfer- Denisons from a catch spring B, basin from which any ing Village of the turn pipe finally runs spring down to C. way. against The court further assessed The water captured so is then carried from $6,000 appellants Village and awarded the (and dry peri- C Bear from Creek in plus exemplary damages, ods) by pipe reservoirs of Vil- judg- interest the date of coats and from lage of Village Peck. The then this uses ment. firefighting pur- domestic poses. water to right Kaylers is that deeded had no the Denison contend Dorcy excepting, one A and B. The fee, flowing Willcox in however, upon which rights being “all water has advanced various theories used Peck, granted acquired to this water. heretofore to the town of contends Idaho, appeal on the reserving go However, this easement we decide premises necessary pur- from these single ground said for all the water duly poses public with the of said and therefore connection use by the use Vil- appropriated water.” beneficial lage. that the standard for the measurement evidence showed B, state, of springs captured shall be the when not use, duty department man’s flows in channels down of the reclamation to natural Kayler Gully Creek, simple, system Creek into Bear devise a uniform for the empties turn navigable Clear- measurement and into distribution of water.” appropriat- River. The Appellant then argues decree supply ed the entire of water from these which omits such a measurement is void for (cid:127)springs per- to its beneficial use. No other vagueness. agree with the contention We sons, appellants, ap- including had ever however, respondent Village, propriated this water beneficial use. applica- appellant2 cases cited for the Village acquired right Therefore a pertinent a tion of such rule are not to springs to use all of the wáter from these issue in the case at bar. according to the constitution statutes requirement The that a decree of water of this State and the decisions this Court.1 of specific set water measurement out Appellant that, argues since the Vil imposed by That I.C. 42-102. § lage originally acquired to simply provides the basic unit of statute waters pursuant from C the terms to purpose of whatever measurement water for grant, of the 1909 written it must be con imposed has This Court be relevant. cluded that flowing the water from requirement a corol- the measurement private and B are waters to which lary policy conservation the basic to rights may acquired only by be other writ The use.3 of water for beneficial resources ings. This be contention is without merit required a measurement Court has cause the testimony photographic ex to intended settle when the decree is hibits admitted into evidence showed claim appropriators who rights of various arising springs, of the water from these .all from fluctuating and use amounts of unobstructed, if naturally will down flow if the decree- Thus, the same source. gully to Bear Creek. Hence water to one awards an uncertain amount of public subject appropriation to vague and needs appropriator whose Rights constitutional method. he will waste likely that fluctuating, it is acquired ways under the various ,be prevent power to yet water and of ac State, and the means of various any bene- surplus to putting the others quisition mutually ex necessarily are not in Laid- the decree ficial basis use. On this clusive. specific to award law was construed ap- competing Appellants’ main contention least two amounts to too failing that the re was district court erred in decree propriators. The Arkoosh quire several it permitted show was entitled one broad because unspecified specific expressed to some amount of water demand appropriators use. per cubic feet second under I.C. 42-102. domestic water for amount of § allowing provides vague That section as follows: Hayes was held decree he take what appropriators one two

"Measurement water. —A cubic foot stream.” irrigation per “proper of water of time shall second be considered method), 15, 3; 42-101, (“constitutional” 1. Idaho Const. art. I.C. § §§ 20-21 42-103, 42-106, Martiny 42-104, 42-111; right) (priority of 215, Wells, 91 Idaho P.2d Laidlaw, Idaho 2. Gile (1966); Sorensen, Nordick Big (1933); Canal Wood Arkoosh v. (1959); Maher Co., P. 522 Idaho Gentry, Hayes Flesher, 198 P. (1947) ; McIntire, Jones Richards, Reno v. (1939); Hutchins, The Idaho Hanford, 21 (1918); Lee v. P. 81 Rights, Law of Water 5 Idaho L.Rev. 1 P. 558 pp. (elements watercourse), 3-4 of a 3; 42-101. (public waters), (private lands), § I.C. art. 14-15 Idaho Const. forty- -among easement in the all decree distributed Denison Reno poses parties exceeding op- to the maintenance four amount water system.5 eration of its the total the stream. flow Hanford decree held defective because award- Appellants assign error all a stream to one of ed water of $6,000 punitive damages appropriators all of could not use two who Appellants against them. contend practice the water. The condemned only in damages may awarded simply these cases was not the issuance damages are the event actual shown awarding unmeasured decrees but punitive damages that the must amount competing appropriator one more water relationship bear a to the amount reasonable beneficially than he These cases could use. Since irrespective express policy against waste injunctive awarded to have of the technical error found argue punitive damages could permitted it. support under the cases said to assessed generally this rule.6 It true case, present In the shown bear a amount of should purposes all had used beneficial relationship reasonable amount of A and B water from until de actual This line of Idaho right. Ap- interfered their of that an cisions also indicates pellants applied any this have never of punitive carefully scrut damages will be allege They water to beneficial use. do not However, by none Court. of inized the any Village that there is which the excess unqualified these cases is circumstances, cannot it is use. these punitive may never be rule that necessary a the decree set forth damages are shown. awarded unless actual specific the amount of water to which the in re are wide mark holdings Their of Village giving “all” of is entitled. decree by instant presented lation to the issue a to water from source a senior certain case. appropriator is valid when all of water used, Only by title to the beneficially quiet no to its there is then an action enjoin rights permanently

waste.4 this the trial On issue court found water to B A and from all interference the waters from the Denisons a Village insure flowing rights formed a off the natural stream those could arose; they supply on the health and Denison land vital for water waters; public The safety therefore these inhabitants. of its two hundred Village acquired showing a absence of a by it to diverting applying entire flow an award of need not bar showing this is not a talismanic beneficial use. It also follows from such a require- secondary finding Village necessity. The reason for Jamerson, Freeman, Ramseyer at 504 15 78 Idaho Idaho 98 v. 4. Lockwood 5. ; Earhart, (1908); 511-512, 2 at 1093 P. Drake v. Idaho P.2d 1088 295 305 Valley Moon, (1890); at 39 P. 541 Malad Simonson v. 72 23 (1951); Campbell, Gorrie Irr. 2 18 P. at 98 Co. v. District, (1888); Hutchins, op. Irrigation 248 see cit. 52 note Weiser (1915); pp. (entire supra, see 562 at flow of at 38-39 at 1, supra, op. although Village Hutchins, stream); at note Peek be cit. also pp. municipality after the events 52-57. came a litigation, giving rise this we would Irrigation Zollinger Big River to allow the Lost have found appropriation difficult not (had District, at excess water Idaho 411 some Doney, fact) (1961); 50-323 White there been under I.C. 176 at 179 City predecessors at P.2d 380 and its Idaho 217 at Beus Springs, (1960); P.2d 151 p. Driesbach v. Soda Hutchins, op. 232-233, 1039 at cit. at see Bone, (municipal water). use Williams P.2d 810 at 812-813 legal- ment that it first insures that some The next consideration relevant ly protected interest has invaded. to a propriety been determination of the of an prevents punitive damages is whether the ages against party caused maliciously one who acted to violate another’s damage legal injury. right.8 without There is sup record this case why ports reason the conclusion of the district court function, not fulfill this same Denisons’ interference with the rights Village maliciously either case it is first show an water legally protected However, invasion of some interest.7 undertaken. con we do not Village plainly sider has done so as relevant to the issue of in. Den case. those actions taken dispute regarding isons their antecedent relating facts Village cattle and with the their over largely irrelevant to the issues water bills. Nor do consider we They deal the easement. appearances Denisons at of the dispute with an antecedent request protest meetings board or to Village of Peck and the Denisons about prop Village actions are certain official keeping cattle and with ac- damges. er basis for an tions taken their the Denisons after and ac Malice the threats was shown purchase of the Denison land to vindicate disrupt tions Denisons their claims to the water on the land to the supply disconnecting Village by of the Village. exclusion The Denisons springs, works, putting debris brought cattle near their into persons who would threatening to kill those home for one winter without consent system, attempt repair the nuisance; Village trustees and created a the near threatening to a feed lot build they the meetings attended most of the the water. springs contaminate in order to Village requests trustees to make and de- created serious type of misconduct This mands; they demanded free at their safety some dangers the health distinguished home as the Denison Village. The the people in two hundred pay land Village; they outside the failed to damages against $6,000 punitive award of Village their bill the refusal punish actions. appellants serves to water; by Village give them free proper. On that basis the award they tampered with their meter aft- court judgment the district off; er their in was shut respondent. affirmed. Costs they sprayed water on official of Village who came to remove the water SPEAR, JJ., concur. TAYLOR and meter; they threatened and carried out ac- the retirement Decision reached before stop springs tion to the flow of water from TAYLOR, J. A and B on Denison by disconnecting pipe part in McFADDEN, (concurring C; B putting in C debris Justice part). in dissenting they Village’s pipe removed the from Bear Creek; they any Village threatened to kill majority portion in that I concur land; judgment might opinion official enter affirms who on Denison they quieting title in lot trial threatened to build feed near en- rights and Peck as to its water contaminate them. Hadden, Damages (1965) ; Harrington 22 at 69 7. 22 241 See Am.Jur.2d § (1949); Damages 24-25, Gun Sedgwick, at 237 of. 361 Bankers, Company, Largilliere nell v. Hodsdon, 412 at 8. at Gonzales 330 at Idaho 551 Libert, (1928); Idaho 708 Zoll Unfried at 816 418, 179; 728-729, supra, p. inger, 119 P. 885 at 891 at note joins incompatible interference with the fun- ** *, rights. portion principles equity those I dissent from damental majority opinion dealing seeking equity and that relief in my litigant It is waives all claims * * plaintiff ages not that a does waive 48 A.L.R.2d at conclusion punitive damages merely a claim for be- jurisdictions dis In some where the relief, equitable cause he seeks but tinction between actions suits under the facts of the instant case equity abolished, been courts respondent village failed to establish recognized that the rule rationale for istence of actual that an precluding punitive damages- is therefore equitable an action for relief has been permissible. not Corp. for instance I.H.P. eliminated. See assumes, majority opinion Corp., Park A.D. While Central South discussion, 2d (1962), without a court N.Y.S.2d 885-886 Court, equit Supreme which the damages in an New York action for Appellant Division, weight able the numerical of au stated: thority plaintiff the effect seek noted, “It outset, should be at the equitable ing entitled to weight State though even he has, past, elsewhere forbidden have been them in a entitled to suit punitive damage awards in actions in Superior common law. See Construction sought. relief is Elmo, Co. v. A.2d Md. pro- reasons are rooted in historic many A.L.R.2d and the cases separation cedural between law cited therein. Also see Oil Sinclair equity separation which, large —a (Okla. Bishop, Gas Co. v. measure, longer is no under sustainable Airlines, 1967); Brady v. Trans World practice. Although modern code F.Supp. (D.C.Del.1961); Orkin abolition of ancient forms of Florida, Inc., Exterminating of South Co. has not eliminated the several Truly Nolen, (Fla. Inc., 117 So.2d 419 equitable principles separately governing Weiss, App.1960); Prucha v. 223 Md. remedies, judicial it has removed out- Co. A.2d 253 Monsanto procedural against moded barriers award- Cochran, 399, 254 Miss. 180 So.2d 624 complete ing single relief action.”' in (1965). the same To effect is Anno. also Union Co. v. Reconstruction See Oil wherein is stated that A.L.R.2d 947 it Co., 170, Cal.App.2d Oil 66 P.2d “ ** * jurisdictions most of (1937). question take which have considered provides: Art. 5 Idaho Constitution punitive exemplary that or view at law “The distinctions actions between may in a damages not be recovered equity, and in and the forms suits equity. court of Some courts subscrib- suits, hereby and are all such actions ing content mere- to this view have been prohibited; and there shall be in ly damages that such ‘not to state of action for state but one form ‘not recoverable’ awarded’ or are private protection of or enforcement ** equity *. courts have in Other private wrongs, redress of or equity position that a court of taken a civil ac- shall be denominated power not have inherent does **; tion * * damages *. Still award such “There courts, 2 states that Similarly to wheth- I.R.C.P. reference other without as known exists, action to be one form of power er have held shall be ” has held may This court damages not action.’ recognized that such ‘civil joined equity in and equity, upon both actions be recovered in one or Ching v. Con- complaint. punitive Wa in the same the theories that an award equitable had awarded both relief (1869); Anderson court stantine, 1 Idaho 266 action, Co., the single and in Mining Eagle Consolidated War although and this court did discuss 789, Anderson not P. 671 issue, puni- 327, affirming in the award P.2d 111 the Cummings, damages af- the court that the tive indicated accordingly in order to (1959). And action, proper procedure been single followed. complete ford able district court practice state Constitution in “* * ^[*] act as the occasion dispenses one of both abolishing provisions demands: objects of our legal and all dis equit- our 2d granted both an ages in Co. California v. Reconstruction an equitable has also injunction action. allowed Oil Co., punitive In trial court Union Cal.App. punitive dam Oil appellate upheld court at law suits tinctions actions ground damages on the equity, giving our district courts form in California there is but one jurisdiction both at law complete full empowered system of action and courts are equity, to rid our relief, stat grant equitable a vexatious both multiplicity of suits and procedure, give ing: and cumbersome complete relief in litigants full and Lightner “It is stated in true prac single action, where under old 689, 120 Mining Lane Cal. Co. v. [161 to ac

tice several suits ** *, award 771] complish Hart that result.” Carroll v. taken a wil- gross mineral value of Co., Fire Ins. ford trespasser deduction full without 154 P. mining milling amounts penses of damages Bank, Capital See also Bates State ; general as a Murphy conceded that 121 P. 561 Co., equity P. 421 rule does award Russell & Stewart, Addy way punishment. United States F. (C.C.A.) Bernard district Since Nevertheless, observed it must be under Idaho law authorized action, there is but one form complete single in California relief in a Civ.Proc.), has the (section Code case, appropriate in an notwith original- although this action complaint standing fact also equitable purely ly instituted equitable cause action. raises damages which nature the claim for came the trial and during arose past awarded Idaho courts persistent ef- through into existence actions relief. Driesbach v. defendants the Reconstruction forts of plaintiff in- production was bring the well injunction, stituted an for com- action an conclusion, It is our legal character. pensatory damages, punitive damages. phase this dealing with therefore, that in equitable The court determined the first ap- correctly court the trial case injunction, granted cause of action and an rule legal plied the above-mentioned appeal. which was affirmed on The case gross amount damages awarding as the district was then returned to court defend- by the Reconstruction received damages. for trial on the issue of gas with- sale of oil from the ants compensatory puni- jury awarded both for any deduction permitting out appeal tive second On extracting them incurred penses again judgment court affirmed the 66 gas.” marketing such oil Lynch, lower Driesbach court. at 1222. P.2d (1953). The district

755 Bramlett, equitable it Bryson v. remains to be effect are con To the same sidered (1958) prop whether such an award was Tenn. S.W.2d present er Park in the Corp. v. case. This court has 210 Central I. H. damages stated that Corp., A.D.2d 228 N.Y.S.2d South relationship must bear a reasonable In the latter case damages Bone, actual awarded. Williams v. stated that Dries apparent “It is that the rule which thus bach 259 P.2d equitable relief forbids combination of ; Doney, White v. with is an case procedural founded an obsolete bar, only damages were no actual basis, apart division rational no awarded, respondent but prove failed to history, in modern substantive damages actual were sustained. warrant, equity. or If the facts my opinion For that reason is entirely appropriate be grant an in- $6,000 punitive damages cannot junction equit- forms another [sic] upheld. majority opinion points able relief and exact also dam- out that conduct of the ages against flagrantly aas deterrent un- performed motivated malice and was conduct, lawful within whether embraced However, intent. an evil the fact injunction or not. Such freedom to that, shows, remains as far as the record grant judicial whatever relief facts damages no proven. actual were Under entirely call with sub- consonant inappropriate circumstances equitable principles stantive punitive damages. present-day pro- and with concepts of cedural efficiency.” majority N.Y.S.2d opinion contends that only purpose requiring showing damages prior awarding puni- actual Similarly there are federal cases which tive is to insure that there is the trial court equitable has awarded re- independent cause lief and same action enforced stat- merely purpose not brought suit was utory penalties for treble or other obtaining damages, penalties comparable punitive damages. pose equally accomplished by request Woods, See Leimer v. (8th 196 F.2d 828 present case. Cir. 1952); Mfg. Aladdin v. Mantle Co. Nonetheless, requirement showing Lamp America, Co. of (7th 116 F.2d 708 purpose. serves a second Cir. 1941); Keller Products Rubber insures that a defendant will not Linings Corp., 213 F.2d A.L.R.2d punished disproportionate to (7th to an extent 1954). Cir. See also: Orenstein States, v. United (1st F.2d Cir. damage actual he has done. 1951), although in which that Title It should be noted also

ages ultimately awarded, the court provides Chapter 43 the Idaho Code entertained a suit injunctive for both re- liability for interference with criminal lief and treble and “Punitive devices, delivery rights and Damages Held Recoverable in Action For punish- under 18-113 such conduct I.C. § Equitable Relief,” 63 Columbia Law Rev. The deter- able as misdemeanor. 175 (1963). my opinion is conduct, ma- future rence of federal decisions and those decisions from theory to a jority opinion relies York, although California and New nu- $6,000 punitive dam- justify the award merically minority, supported by a by the already accomplished ages, thus is reasoning. better governing such con- legislative enactments punish-

Although an need further punitive damages award of is no for duct. There damages. is necessarily punitive not prohibited action ment means of in an guishable oc from the case at bar. There stated on several This court has damages replevin “Exemplary are not stated casions law, power jury may punitive damages and the of the where favorite proved with malice is and that give be exercised damages such should limits.” within the narrowest caution and cases, proof “In such definite of actual Bone, Idaho Williams v. unnecessary. damages is To show that ; Zollinger Big Lost River a legal has been is suffi- violated Dist., P.2d 176 Idaho Irrigation cient, supplying itself violation stated Williams As this court for damages.” foundation nominal (1953) : Bone, 6 P.2d at 156. Idaho mathematical there no fixed or is “While fact, however, damages actual were ratio, proportion, or relation and, proved case, event, any in that no damages and the actual amount of awarded. Therein punitive exemplary or amount the judgment of the lower court reveals proper case be ages, in a plaintiff awarded either the authority for awarded, ample there is report gas return of oil and which the not must proposition that an award value, appropriated, its defendant or the actual dam- disproportionate to so $1,000 plus damages in for the amount of pas- ages to be the result sustained as report during of use loss reason, prejudice rather than sion retained it. month defendant exemplary damages must an award $1,000 compensatory actually a propor- bear relation or some reasonable report, not loss of use of the ques- damages, real tion to actual decision language passion being rather than whether tion above, quoted then, than dictum is no more the verdict.” 74 Idaho at reason dictated and, additionally, stated without is P.2d at 813. authority Subsequent deci- support. See also Annot. A.L.R.2d 527 wherein sions of this court have not followed stated Com- Crystal Dome Oil & Gas statement in “A recog- large number of decisions Savic, held that pany rather but nizing showing that a actual rule relationship be- there be a reasonable must damages predicate is a for an damages. Wil- tween actual exemplary use lan- award of P.2d 810 Bone, liams Idaho actually guage indicating that there must Driesbach v. finding be a actual dam- Doney, 82 White recovery ages before rule, (1960). This P.2d 380 justified.” 535) (at Absent a my one. opinion, is the better majority “The opinion ab- states it cannot damage, actual showing of some showing sence of a need $6,000 punitive that an award said bar the actual reasonably related damages is such a not a showing is talismanic neces- Accordingly would reverse I damage. is, however, sity.” There cited regard. the district court decision of language statement. Similar foregoing. SMITH, J., Crystal opinion C. concurs found in this court’s decision (SMITH, J., participated in this Savic, C. Dome & Oil Gas Co. v. prior retirement.) P.2d 155 but that case distin-

Case Details

Case Name: Village of Peck v. Denison

Court Name: Idaho Supreme Court

Date Published: Jan 27, 1969

Citation: 450 P.2d 310

Docket Number: 10159

Court Abbreviation: Idaho