Candler v. Washoe Lake Reservoir & Galena Creek Ditch Co.

Crops — Destruction—Damages—Irrigation—Construction or Contracts— Appeal — Time op Taking — Assignments op Error. 1. An appeal from a judgment, when not taken within one year from the time of the rendition of the judgment, as required by Comp. Laws, 3425, will be dismissed. 2. Where the assignments of error do not include any general assignment, in accordance with Comp. Laws, 3292, that the decision or judgment is not supported by the evidence, or is contrary to the evidence, but specify a number of particulars in which it is alleged that the evidence is insufficient to sustain the findings and decision of the court, the supreme court’s consideration of the evidence will be limited to such portions thereof as refer to the particulars specified as insufficient. 3. A provision of a contract to supply water for irrigation, requiring defendant to deliver to plaintiffs 50 inches of water " on Section 14, near the line of Section 23, at a point to be designated on the line” of a certain ■ ditch, merely fixes the place of delivery, and does not preclude plaintiffs from recovering damages for the loss of crops on Section 23 in case of defendant’s failure to deliver the water as required. 4. Errors not presented in the briefs of appellant’s counsel nor in the oral argument will not be considered. 5. The measure of damages for the total destruction, or nearly total destruction, of growing crops which would to a reasonable certainty have matured except for defendant’s wrongful act, is the value of the probable yield of the crops under proper cultivation when matured and ready for market, less the estimated expense of producing, harvesting, and marketing them, including the expense of irrigation, and the value of any portion of the crops that may have been saved. G. Wheat seed is a necessary expense of producing a crop of wheat, and the value thereof is not an element of damage for the destruction of the crop while growing. 7. The value of timothy and alfalfa seed, planted, not to produce a' single crop, but to obtain a stand which will produce crops for many years without further seeding, is an element of damage for the wrongful destruction of the crops, including the seed, while growing.

Appeal from the District Court, Washoe County; M. A. Murphy, Judge. Action by Mrs. 0. I. Candler and another against the Washoe Lake Reservoir and Galena Creek Ditch Company. From a judgment for plaintiffs and from an order denying a new trial, defendant appeals. The facts sufficiently appear in the opinion. I. In this case plaintiffs brought suit on an alleged breach of contract whereby plaintiffs alleged that defendant agreed to furnish 50 inches of water upon Section 14, Township 18 north, Radge 20 east, during the irrigation season, according to a written contract set forth and made part of the complaint. Plaintiffs further alleged in their complaint that defendant failed to furnish water according to contract and they had been damaged thereby, among other things, by loss of crop, seed, and labor to produce the same. Defendant answered by alleging that it had furnished the 50 inches of water according to contract up to the 8th day of August, 1902, and a smaller amount thereafter for the reason that sufficient water was not obtainable from said creek after said 8th day- of August, and also denied that plaintiffs had been damaged in any sum whatever; and further alleged that by the terms of said contract plaintiffs had agreed to pay defendant $2.50 per acre for the first crop and $2.50 for the second crop. The court found that defendant had agreed to furnish. 50 inches of water upon Section 14 during the irrigating season, when obtainable. The court found that defendant furnished 50 inches of water according to the terms of the contract from the 10 th day of May to the 8th day of August, 1902. The court found that " plaintiffs relying upon the agreement of the defendant cleared and seeded to alfalfa, timothy, and wheat 29 acres of land and seeded to timothy and alfalfa 5 acres in addition thereto, for the purposes of pasturage, in Sections 14 and 23, expecting to irrigate and cultivate the crops so sown with the waters agreed to be furnished,” etc. II. There is a conflict between findings 3 and 5 in this, that in finding 3 the court found that the defendant had agreed in writing to furnish 50 inches of water on the land in Section 14, but nowhere found that defendant had ever agreed to furnish any water upon Section 23, while in paragraph 5 the court found that defendant had cleared and sown the land in Sections 14 and 23. The court further found in said finding 5 that the loss sustained was for loss of crops, etc., on Section 23, and this part of said finding 5 is in conflict with finding 3, and it is not sustained by any evidence in the case. It is in direct opposition to all the evidence introduced on the trial. III. The court erred in giving plaintiffs damages for loss of crops raised or attempted to be raised on Section 23, as under the findings and evidence the defendant cannot be held or mulcted in damages for any loss for crops raised or attempted to be raised on the lands in Section 23. The court found that the defendant fulfilled its contract up to the 8th day of August, 1902, and furnished some water after that date, but insufficient in quantity to irrigate all of the crops in'Sections 14 and 23. We contend that in the absence of a showing to the contrary, in the face of the finding of the court that defendant furnished some water after the 8 th day of August, 1902, the law presumes the defendant furnished water sufficient to irrigate the crops on Section 14 after the said 8th day of August, 1902, and, further than that, the burden of proof fell on plaintiffs to show by a preponderanee of the evidence that defendant failed to' supply sufficient water to irrigate the crops on Section 14 after the said 8th day of August, 1902, and under the evidence the court erred in not finding there was sufficient water furnished by defendant to irrigate the crops in Section 14. IY. The court found that plaintiffs had been damaged by the loss of the wheat crop so sown on Sections 14 and 23 to the amount of $362.25; by loss of fall pasture, 34 acres, to the amount of $120.60; to the amount expended for wheat and alfalfa seed used in seeding said land, $96.88; and to the amount of $150 expended for labor, etc. The court, on motion for new trial, struck out the item of $150 as being an error. The court erred in finding that defendant should pay for the seed put into the ground to raise the crop after assessing the crop as damage against defendant. Until the trial of this case, whoever heard of a ease where the" judge gave the crop to plaintiffs as a damage, then on top of that gave plaintiffs the costs of the seed sown to produce the crop? We claim that this error is so apparent that the bare statement is sufficient to disclose the error. This finding of the court further shows that a part of the seed ($96.88) was sown upon Section 23 with which defendant had no concern, and we claim is such an error as is fatal to the judgment. This finding further shows that the item, $102.60 damages, assessed against defendant for loss of fall pasturage, was for loss of pasturage on Section 23, which is in direct conflict with finding 3, and the verdict in the case is wholly unsustained by any evidence. The contract and the entire evidence shows conclusively that defendant never agreed to supply water on Section 23 under any circumstances. Further, the assessing of the seed as a damage against the defendant was the same kind of an error as that committed by the court in allowing the irrigator’s wages' against the defendant, and should have been stricken- out or a new trial granted. V. The court found that defendant furnished plaintiffs with water according to contract to August 8, 1902. The evidence of James Burke shows without any contradiction that the first crop was ready to cut July 1st. Under said finding and on said evidence defendant was entitled according to said contract to the sum of $2.50 per acre for water for irrigating the first crop, and it was error on the part of the court to refuse defendant this sum of $95 as an offset to the amount of damages allowed to plaintiffs, the court having given the plaintiffs damages as follows, to wit: Value of timothy seed, $15.38; value of alfalfa seed, $52.50; value of wheat seed, $29; loss of pasturage of 34 acres of land at $3 per acre, $102; 29 acres of wheat, 900 pounds to the acre, at l/i. cents per pound, $362.25; the wages of an irrigator from May 7, 1902, until the 7th day of August, 1902, at $150 per month, $675.13. This was the value of the seed, crop, and labor of raising the crop just as though the crop had been raised and fully matured. Under any fair ruling the defendant was entitled to $190 for irrigating the land so long as he was held liable under the contract for the seed, crop, and labor in raising the same. VI. • The court erred in giving plaintiffs damage for loss of wheat crop, for the reason the contract in evidence shows that defendant agreed to furnish water for two crops, the first being ready to cut about July 1st, and the second during September, and the fact that plaintiffs planted a crop that would not mature within those dates should not be assessed against defendant under the terms of said contract. The court erred in making no allowance for the hay and wheat which plaintiffs cut and used from said lands which were raised by the water supplied by defendant. The court erred in giving defendant the gross value of the crop value without deducting the expenses of raising, cutting, harvesting, and marketing the same. I. The respondents’ motion heretofore filed herein to dismiss the appeal from the judgment should be sustained. The mere suggestion of the facts is sufficient to justify this action of the court. The judgment was entered on the 7th day of July; the notice of appeal was served on the 19th day of September, 1904, more than a year after the judgment was entered. An appeal is made by filing with the clerk of the court with whom the judgment is entered a notice, and serving a copy thereof upon the adverse party or his attorney. (Comp. Laws, 3426.) The appeal not having been taken from the final judgment within one year after the rendition thereof, the motion to dismiss must be sustained. (Comp. Laws, 3425; Sullivan v. Fuller, 13 Nev. 276.) II. The appellant’s brief herein is so incomplete and unsatisfactory as not to arise to the dignity of an assignment of errors under the laws of this state. With one or two exceptions, the matters suggested as a reason for the reversal of the order denying the motion for a new trial have not even been included in the specifications of error. Most of the suggestions offered in the appellant’s brief were not even made by the pleadings. By an objection to the evidence or by assignment of errors, and, with the appeal from the judgment dismissed, could not, under our civil practice act, be presented an appeal from an order denying the motion for a new trial. Only matters properly arising under section 3290 of the Compiled Laws as grounds for a new trial, to wit; (1) irregularity in the proceedings of the court,' (2) misconduct of the jury, (3) accident or surprise, (4) newly-discovered evidence, (5) excessive damages, (6) insufficiency ofthe evidence to justify the decision, and (7) error in law occurring at the trial and excepted to, can be considered by this court upon an appeal from an order denying appellant’s motion for a new trial. Subdivision 1 of appellant’s brief does not even state correctly the finding of fact therein referred to. The contract, the complaint, and all the evidence was not to the effect, as suggested by said subdivision, that the water agreed to be furnished by appellant should be furnished for use upon Section 14. On the contrary the contract provided for the delivery of the water on Section 14, near the line of Section 23, at a point to be designated on the line of the Candler Ditch during the irrigating season of each year. There is nothing in the evidence or in the contract even suggesting that the appellant should control or name the lands to which the water should be applied or upon which it should be used. The complaint charges that they failed to deliver at said point, designated by the appellant itself, the quantity of water agreed to be furnished, and that the same was insufficient to irrigate certain lands in the possession and ownership of the plaintiffs during the year complained of. It appears from the testimony of Mr. Candler, and by other witnesses who were stockholders in the defendant company, particularly the testimony of Mr. Hardin, that the appellant designated the point on the line of the Candler Ditch in Section 14 for the delivery of the water and placed a box therein for its measurement, and undertook during the season to comply with its contract by the delivery of the water at that point. It was not the concern of the appellant as to what lands this water should be used upon. The proof shows' that after a certain date the appellant absolutely failed and refused to deliver at the point it had designated the quantity of water contracted to be delivered and that, as a result of its failure and refusal, the crop of wheat grown on Sections 14 and 23, which sections, this court judicially knows, lie adjacent to each other, and the crops of alfalfa sown thereon valuable for pasturage were utterly ruined and destroyed. III. The second contention of appellant, found in paragraph 5 of its brief, is that there is a conflict between findings 3 and 5 in this, that in finding 3 the court found that the defendant had agreed in writing to furnish 50 inches of water on land in Section 14, but nowhere found that the defendant had ever agreed to furnish any water upon Section 23, while in paragraph 5 of the findings the court found that the defendant had cleared and sowed the land in Sections 14 and 23. Again we call the court’s attention to the contract. The appellant company did not undertake to furnish water for the irrigation of any particular land. The respondents did not designate, and were not required to designate under the contract, on what land they expected to use or apply the water. Under the contract it was the absolute right of the respondents to apply the water upon any lands they saw fit, and it was the duty of the company to deliver 50 inches of water on the Candler Ditch at a certain point designated. The mere suggestion of the contract as set up and of the finding of the court shows that there is no conflict whatever. Not only is there no conflict between the findings, but no issue was made by the pleadings as to the liability of the defendant for failure, under the averments of the complaint, to furnish water upon Section 23. It was not an issue in this case. There is no assignment or specification of error suggesting a right of reversal upon that ground. IV. As to the contention contained in the sixth paragraph of appellant’s brief, that respondents were not entitled to pay for loss of crops raised on Section 23, it is sufficient to say, as has been heretofore said, that it was no concern, under the plain terms of the contract, of the appellant company as to what lands respondents used the water upon. When they delivered or attempted to deliver the water at a certain point on the Candler Ditch on Section 14, near the line of Section 23, they had complied with their contract. When they failed to deliver the 50 inches of water during the irrigating season at the point which they designated on the line of the Candler Ditch in Section 14, near the line of Section 23, and by such failure caused respondents to lose crops either on Section 23 or 24, or upon any other section for that matter, they became liable under the contract. V. As to all matters of claim or contention respecting the crop that ought to have been produced but for the failure of the respondent to furnish water as it agreed upon Section 23, we have nothing more to add.. As to the damages awarded, we can do no better than to refer to the opinion of the trial judge on the motion for a new trial, from which it appears allowance was not made for the seed, as claimed in the appellant’s brief. The damages awarded are below that justified by the testimony, based both upon quantity and value which should have been produced had the appellant complied with his contract; neither was allowance made for the full market value of the crop, as shown by the testimony in the record. Mr. Gibson testified that wheat started at $1.20 per hundred, and ran up to $1.50. VI. The contention that the evidence shows that the first crop was ready to cut on July 1st, by the testimony of James Burke, is not a fact. Mr. Burke is testifying as to the first crop of alfalfa, two crops of which are ordinarily produced each year. The crop of alfalfa and timothy sown upon the land in controversy was valuable, by the undisputed testimony of Bahne, referred to by Judge Murphy in his opinion, only for fall pasture, and he placed the price upon that crop as for pasture, at $3 per acre. There is no other testimony in the record upon this point, and this must be taken as conclusive. Only one wheat crop, as it appears from all the testimony, can be produced during the one season, and it does not mature until later in the season. Judge Murphy, who visited the ground during the progress of the trial, explains the situation when he says, in his opinion, that the alfalfa and timothy that were sown that year with the expectation of pasturage and crops of hay during the next year were all destroyed for the want of water, with the exception of a few acres, and the necessity of reseeding made such failure, therefore, an element of damage. The proof as to the wheat crop, and undisputed, as shown by the testimony of Mr. Candler on the pages above referred to, was that no wheat at all was cut, but only a few loads of straw that were practically valueless, the stock even refusing to eat the same. VII. We further contend' that there is not a single assignment of error upon which to base the contention of appellant’s brief, and that, therefore, the judgment should be affirmed. I. It is true that judgment was rendered in favor of respondents on June 29, 1903, for the sum of $675.13 and costs amounting to $120.95. Notice of motion for a new trial was served and filed on July 10, 1903, and thereafter a statement on motion for a new trial was also filed and settled. The court did not hear the argument on motion for new trial until June, 1904, and on the 11th day of August, 1904, after due deliberation thereon, the court modified said judgment by deducting therefrom the sum of $150, holding the judgment to be erroneous to that extent. We think the proper construction of the language of section 3425, Comp. Laws, " from the final judgment in an action * * * within one year after rendition of judgment,” is one year from the time the judgment became final by the court reducing the. judgment and changing the same from $675.13 and costs to $525.13. We contend that the judgment did not become final until the said 11th day of August, 1904. Had defendant appealed from the judgment of $675.13, and the supreme court had found no error therein and affirmed the same, then defendant would have been compelled to pay $150 of an unjust judgment. A judgment is final beyond question when the jurisdiction of the trial court is exhausted and the question it decided gone from its control forever. (State v. Butterfield, 54 Mo. 394; Kamp v. Kendrich, 130 Ind. 546; Western Union Tel. Oo. v. Loche, 107 Ind. 9.) II. Paragraph 3 of the complaint alleges that defendant agreed to furnish 50 inches of water on Section 14. The answer denies that defendant "failed or neglected to furnish plaintiffs the amount of water agreed to be furnished to said W. M. Candler by defendant under said agreement,” etc. The same denial will be found in other parts of the answer, hence it will be seen that whether or not 50 inches of water was furnished upon Section 14 was one of the issues in the case. The finding of the court that defendant was to pay damages for loss of crops on Section 23 is in conflict with the pleadings, wholly unsupported by any evidence in the case, and excepted to by Mr. Wren. III. -Again, counsel for respondents assert that there is no assignment or specification of error, etc., another assertion of counsel for respondents without foundation of fact. In notice of motion for a new trial, lines 24 to 27, inclusive, p. 453 of transcript, the defendant, by its attorney, Mr. Wren, asked for a new trial on the ground of "insufficiency of the evidence to justify the findings and decision of the court, and that the decision is against law.” Section 3292 of the Compiled Laws says: "When the notice designates as the ground upon which the motion will be made the insufficiency of the evidence to justify the verdict or other decision, it shall be a sufficient assignment of error to specify that the verdict of the jury, or the decision, or judgment, or decree of the court is not supported by the evidence, or is contrary to the evidence. In such case, where it appears that the evidence, taken altogether, does not support the verdict, or decision, or judgment, or decree of tbe court, a new trial shall be granted, or, upon appeal, the case shall be reversed without regard to whether there are express findings upon all the issues, or whether the specifications particularly point out the finding or findings, either expressed or implied, that are not supported by the evidence, or are contrary thereto.” The finding that defendant is liable to pay damages for loss of crops on Section 23 is not supported by a scintilla of evidence in the ease, but, on the contrary, is in direct conflict with the finding 3 and also in direct conflict with all the evidence in the case. The contract is clear that defendant was obliged to deliver water on Section 14, and the finding that defendant is liable for loss of crops on Section 23 is unsupported by any evidence in the case. Hence, it will be seen that the assignment of error comes clearly within the provision of the statute. IV. In paragraph 6 counsel for respondents again assert that the findings of the court do not show that the defendant furnished all the water on Section 14 according to contract up to the 8th day of August, 1902. This assertion is in conflict with the findings. On page 448 of the transcript the court can see for itself that the lower court found as follows, commencing on line 23 of said page: "Defendant placed a box- for the measurement of said quantity of water to be furnished plaintiffs under its said agreement. On or about the 10th day of May, 1902, defendant commenced to furnish and deliver said quantity to plaintiffs and continued to furnish that quantity until about the 8th day of August, 1902, when said defendant failed and refused upon repeated request and demand to furnish the quantity it had agreed to furnish, and the amount furnished during said last-named period was entirely insufficient to irrigate and cultivate said crops and lands,” etc. This is just as counsel for appellant claimed the findings to be in its paragraph 7 of opening brief. Counsel for respondents ought not to find fault with the findings, or misquote, as the record shows they drew the findings themselves. ' V. Counsel for respondents finally assert that the testimony of James Burke does not show that the first crop was ready to cut July 1st. This assertion is in conflict with the evidence; see page 372 of transcript. We believe that the record shows beyond any question a number of errors of the trial court prejudicial to the defendant, such errors as he who reads may readily see.