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

By the Court, Norcross, J.: This action was brought by the respondents against appellant for damages in the sura- of $2,000 for breach of the conditions upon the part of appellant of a written contract to supply respondents with 50 inches of water for irrigation, which breach resulted in the loss of respondents’ wheat and pasture crops for the year 1902, and the destruction of a considerable part of a stand of alfalfa and timothy upon the lands of respondents situated in Sections 14 and 23, T. 18 N., R. 20 B., in Washoe County. Appellant denied liability for, and also the amount of, the alleged damage. The case was tried before the court without a jury, and respondents were awarded a judgment against appellant for the sum of $675.13. A motion for a new trial was made by appellant in the lower court, and upon the hearing of the motion the court determined that it had erroneously allowed as a portion of the damages the sum of $150, an amount which represented the wages paid an irrigator. Respondents consented to a reduction of the judgment by striking out therefrom the said sum of $150, and, the judgment being so modified, the court overruled the motion for a new trial. From the judgment and from the order denying the motion for a new trial, defendant has appealed. Counsel for respondents have moved to dismiss the appeal from the judgment upon the ground that the appeal was not taken within one year after the judgment was entered, as required by Comp. Laws, 3425. Final judgment in this case was pronounced by the trial court on the 29th day of June, 1903, and entered by the clerk in said cause on the 7th day of July following. The appeal was taken on the 19th day of September, 1904. The appeal from the judgment, not having been taken within one year from the time it was rendered by the trial court, is dismissed. (Solomon v. Fuller, 13 Nev. — 163 — 276; Kehoe v. Blethen, 10 Nev. 453; Comp. Laws, 3425.) The motion for a new trial was made upon several grounds, only one of which has been urged upon this appeal, to wit, "insufficiency of the evidence to justify the findiugs and decision of the court, and that the decision is against law.” The assignments of error do not include any general assignment to the effect that "the decision or judgment of the court is not supported by the evidence, or is contrary to the evidence,” as provided may be done in Comp. Laws, 3292, but a number of particulars are specified in which it is alleged "the evidence is insufficient to sustain the findings and decision of the court.” This court’s consideration of the evidence therefore will be limited to such portions only as refer to the particulars specified in which it is claimed the evidence is insufficient. The material part of the contract between the parties to this action, in so far as it affects questions presented on this appeal, is as follows: "This agreement, made and entered into this 4th day of January, A. D. 1899, between the Washoe Lake Reservoir and Galena Creek Ditch Company, a corporation, * * * the party of the first part, and W. M. Candler, * * * the party of the second part, witnesseth: That the said party of the first part, for aud in consideration of the covenants on the part of the said party of the second part, hereinafter contained, hereby covenants with the said party of the second part, that the said party of the first part will furnish to said party of the second part, his heirs or assigns, 100 inches of water on Section 22, Township 18 N., R. 20 E., in Washoe County, Nevada, to be designated by the party of the second part, on the line of that certain ditch known as the Candler Ditch, during the irrigating season of each year, for the period of three years; and 50 inches of water from and after the expiration of the said three years delivered 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. * * * And the said party of the second part, in consideration of the covenants on the part of the first party hereinbefore contained, agrees to and with the said party of the first part, that the said — 164 — party of the second part will pay to the said party of the first part, or its order, the sum of $2.50 per inch for all water furnished by said party of the first part to the said party of the second part to irrigate the first crop raised by the said party of the second part, and $2.50 per inch for water furnished by the said first party to said second party to irrigate the second crop raised by said party of the second part during the irrigation seasons of each year.” It has been strenuously urged by counsel for appellant that the evidence and the provisions of the contract show conclusively that the appellant never agreed to supply water for use on Section 23, and hence that appellant could not be mulcted in damages for loss of crop on said section. This contention does not seem to have been urged upon the trial of the cause, and it is questionable, under the assignments of error, if appellant is now in position to make it. Without passing upon the question of appellant’s right to present the question, we cannot agree with counsel in the construction they place upon this contract. It is clear, we think, that the provision of the contract requiring appellant to deliver respondents 50 inches of water "on Section 14, near the line of Section 23 at a point to be designated on the line of the Candler Ditch,” was only intended to fix the place of delivery, and that the water, being thus delivered to respondents, was theirs to conduct upon whatever lands they could conveniently use the same upon for irrigation purposes. It was therefore no concern of appellant upon what lands the water should be used. Several alleged errors have been assigned which will not be considered, as they have not been presented in the briefs of appellant’s counsel or in the oral argument. (Gardner v. Gardner, 23 Nev. 213; Allison v. Hogan, 12 Nev. 38.) The following particulars are specified in which it is claimed the evidence does not support the decision of the court, and are all that require consideration: " (2) The court made no allowance for the hay and wheat which Candler cut and used from the land to which the water was supplied by defendant.” " (4) The court made no allowance for the expense of rais — 165 — ing, maturing, threshing, and marketing crops that the court held would have grown upon said land had sufficient water been supplied, but gave plaintiffs judgment for all that said crop would have brought in the market without deducting the expense of maturing and marketing the same.” "(10) There is no evidence to support that part of the finding of paragraph 5 that finds that the failure and refusal of defendant to furnish the quantity of water it had so agreed, and that plaintiffs were damaged by the loss of the wheat to the amount of $362.25, or in any other sum, or to the amount expended for alfalfa seed used in seeding said land, or in any other sum whatever, or to the amount of $150, or any sum for labor and board of one person employed to irrigate said lands and crops, or that the total damage sustained by plaintiffs is $675.13, or any sum greater than $225.” In passing upon the foregoing specifications it is necessary to determine whether the trial court adopted and applied a proper measure of damage for the loss of the growing crops. The measure of damage adopted by the trial court is expressed in its opinion, and is as follows: "The damages would be the value of the crops such as the witnesses should believe would ordinarily have been produced that year, deducting all expenses of raising the crop.” Is this rule for the measure of damages in eases of this kind entirely correct? The authorities do not all agree as to what is a proper rule for the measure of damages for loss or destruction of growing crops. It is generally held, however, that the measure of damages for the destruction of a growing crop is the value of the crop in its condition at the time of the injury. A still wider difference of opinion exists among the authorities as to the evidence that will be heard in determining such damage, as the following extracts will illustrate: In Sutherland on Damages, sec. 1023, the author says: "In ascertaining the value of a crop in accordance with this rule a considerable latitude of inquiry is properly opened. The capacity of the land to produce crops being in question-, evidence of the average yield of like crops upon similar lands in the neighborhood, under like circumstances and condi — 166 — tions, is admissible, and also the average market value of the crop injured within reasonable limitations as to time and the expense of harvesting and marketing a like crop.” In Sedgwick on Damages, sec. 937, that author says: "In estimating the value of the crop, the prevailing rule seems to be to take its actual value at the time of the trespass, not its probable value, assuming that it would have matured. On the other hand, in Smith v. Chicago C. & D. R. R. Co., the measure of damages was stated to be the difference between the market value of the crops when ripe and their value in an injured state, less the cost of growing them. This rule, however, is objectionable, because it assumes with-' out proof that the crops would have come to maturity.” In Burnett v. Great Northern Ry. Co., 76 Minn. 465, 79 N. W. 524, in'discussing the rule as applied to the evidence in that case, the court says: "If the damages to the plaintiff’s crops are to be estimated with reference to events occurring subsequent to the loss, such as the average yield of similar crops and the market value of the grain, the evidence indicates that they are excessive. But the measure of the plaintiff’s damages for the loss of his growing crops was the value on the day they were destroyed, to be determined by facts existing at that time.” In the case of Railway Co. v. McGowan, 73 Tex. 362, 11 S. W. 337, that court said: "The crops were destroyed while growing, and before they had matured. As part of his evidence to establish their value at the time and place they were destroyed, plaintiff was permitted to prove the value of corn and potatoes of that year’s crop in the fall after they had matured and were ready for market. We think the evidence was properly admitted. The only correct criterion for ascertaining the value of a growing crop at any period of its existence is to prove what that character of crop was worth at or near the place where it was grown when matured, and to make proper estimates and allowances from ascertained and ascertainable facts for the contingencies and expenses attending its further cultivation and care.” In the case of Railroad Co. v. Pape, in the same volume of reports, at page 501, 11 S. W. 526, the court again discussing — 167 — the same question, says: "It seems to us that, as a general rule, the most satisfactory means of arriving at the value of a growing crop is to prove its probable yield under proper cultivation, the value of such yield when matured and ready for sale, and also the expense of such cultivation, as well as the cost of its preparation and transportation to market. The difference between the value of the probable crop in the market and the expense of maturing, preparing, and placing it there will in most cases give the value of the growing crops with as much certainty as can be attained by any other method.” From an examination of many authorities we are convinced that a just and reasonable rule for the measure of damages for the loss of growing crops in cases like the one now before this court, where it appears that the crops have been entirely destroyed, or nearly so, and where there appears to be a reasonable certainty that they would have matured but for the wrongful act of the defendant, would be to allow the plaintiffs the probable yield of the crops under proper cultivation, the value of the yield when matured and ready for-market, and deducting therefrom the estimated expense of producing, harvesting, and marketing them, and also deducting the value of any portion of the crops that may have been saved. (Railroad Co. v. McGowan, supra; Railroad Co. v. Pape, supra; Smith v. Chicago Ry. Co., 38 Iowa, 518; Shotwell v. Dodge, 8 Wash. 337, 36 Pac. 254; Hopkins v. B. & M. Com. Co., 16 Mont. 359, 40 Pac. 865; Carron v. Wood, 10 Mont. 507, 26 Pac. 388; People’s Ice Co. v. Steamer Excelsior, 44 Mich. 237, 6 N. W. 636, 38 Am. Rep. 246. And see, also, Lommeland v. St. Paul Ry. Co., 35 Minn. 412, 29 N. W. 119; Sutherland on Damages, supra.) In the written opinion and decision of the trial court and in the findings is contained a statement of the items which the court considered as going to make up the proper amount of damages to be awarded the plaintiffs, and they are as follows: Value of alfalfa and timothy seed planted, $67.88; value of wheat seed planted, $29; value of fall pasture, $102; value of wheat crop, $326.25; wages of an irrigator, $150— making a total of $675 13. As the judgment now stands, — 168 — after deducting the $150 heretofore stricken from the judgment, the plaintiffs have been allowed the sum of $428.25, the market value of the estimated crops of pasture and wheat, and including the value of the seed as above mentioned. The wheat seed was a necessary expense of producing the wheat crop, and therefore is not an element of damage. It is urged that for the same reason the value of the timothy and alfalfa seed should also be stricken out. This seed, however, was not planted for the purpose of producing a single crop, but to obtain a stand which would produce, ordinarily, two crops per year for many years without further seeding. The court found, because of the failure of the defendant to furnish water as agreed, that the stand of alfalfa and timothy was in the main killed out. The damage thus resulting was a damage to the realty itself, and would amount at least to the value of the seed planted to produce the stand. There does not appear to be any evidence in the record of what would have been the probable cost of harvesting and marketing the wheat crop, and it does not appear that these expenses were considered proper deductions to be made from the estimated market value of the crop. Also, it appears that the only expense of producing the crops considered by the court was that of the wages of the irrigator. It, however, appears from the record that, if plaintiffs’ crops had matured, a further and additional necessary expense of their production would have been the cost of water for irrigation. While, under the findings, the defendant is not entitled to anything-in the nature of a counterclaim for water furnished, nevertheless it is necessary to consider what the water would have cost in order to determine the net profit, which plaintiffs should have derived from their crops, which, in brief, is the measure of their damage. Deducting what the water would have cost, to wit, $250, and the cost of the wheat seed from the judgment as now modified, and there would remain the sum of $246.13, from which there should yet be deducted the cost of harvesting and marketing the wheat crop. There is also evidence upon the part of plaintiffs that a small portion of the crop was saved, of the value of $15 or $20, which does not appear to have been taken into account in — 169 — the judgment. For the reasons given, we conclude that the judgment is not supported by the evidence, and it is ordered that, subject to the consent of respondents, the judgment be modified and reduced to the sum of $225, an amount admitted in appellant’s specifications to be proper. If respondents shall within ten days from notice of this decision file their consent to a modification of the judgment by a reduction of the same to the sum of $225, then the judgment will be so modified, and the order overruling defendant’s motion for a new trial will be affirmed; otherwise, the order is reversed and a new trial is granted. Appellant is entitled to its costs on appeal.