Home/Idaho Supreme Court/Albrethson v. Carey Valley Reservoir Co.

Albrethson v. Carey Valley Reservoir Co.

186 P.2d 853, 67 Idaho 529, 1947 Ida. LEXIS 135
CourtIdaho Supreme Court
DecidedNovember 12, 1947
DocketNo. 7367.
StatusPublished
Cited by12 cases

This text of 186 P.2d 853 (Albrethson v. Carey Valley Reservoir Co.) is published on Counsel Stack Legal Research, covering Idaho Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Albrethson v. Carey Valley Reservoir Co., 186 P.2d 853, 67 Idaho 529, 1947 Ida. LEXIS 135 (Idaho 1947).

Opinion

GIVENS, Justice.

Respondent, for himself and as assignee of his share-crop landlord, contending ap *532 pellant, a mutual cooperative nonprofit irrigation company, negligently maintained and operated its irrigation canal, sued and recovered damages for crop loss on seven acres of his land for 1940 and forty acres in 1941; claimed to have resulted from water negligently and injuriously leaking and seeping from appellant’s canal into the land described, whereby the enumerated and evaluated crops did not mature.

Appellant denied water seeped or percolated from the canal to respondent’s injury or- that he was damaged in the amount sued for because of its negligence or otherwise; and as affirmative defense urged estoppel because respondent had rented the land with full knowledge of the existence of the ditch, the manner in which it was maintained and had participated in the use thereof: i. e. evidently using water therefrom; and as a second affirmative defense, alleged the land in question was naturally soggy, sodden, boggy, tule infested and swampy and for years had been a natural, boggy swamp and that any water-logging thereof was occasioned by water flowing from or on to the land naturally from the hills to the north, east and south thereof; that appellant’s ditch in fact helped to cut off or prevent some of such waters from percolating into respondent’s land and was, therefore, a benefit to him and that the adjacent hills are water-bearing hills and contributed whatever water there was that caused respondent’s land to be wet.

The appeal seeks relief from the verdict and judgment for respondent, on two main grounds: First, the evidence was insufficient to show the canal was negligently maintained or that the water-logged condition of respondent’s land was due to water escaping therefrom, thus tersely expressed by appellant’s brief:

“An examination of the physical facts, and the pleadings in this case narrows the issue presented to one question; ‘Was the defendant’s negligence in the operation and maintenance of its canal during the year 1940 and 1941, the proximate cause of defendant’s alleged damage ? ’ ” and second, instructions erroneously given and refused.

The portion of respondent’s land asserted to have been injured is largely in Section 9, a small part being in Section 10, Twp. 1 So., Range 21 East, B.M. and slopes to the south and west in a natural depression, cove, basin or swale between hills high on the north, lower to the east and south. The .location of the land and appellant’s canal, which extends from the southeast to the northwest along the southern boundary of respondent’s land, being separated therefrom by a dirt road and a fence, is graphically portrayed in Plaintiff’s Exhibit B, set forth herein.

*533

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Bluebook (online)
186 P.2d 853, 67 Idaho 529, 1947 Ida. LEXIS 135, Counsel Stack Legal Research, https://law.counselstack.com/opinion/albrethson-v-carey-valley-reservoir-co-idaho-1947.