Hollister v. State , 9 Idaho 651 ( 1904 )

AILSHIE J.

This is an appeal by the defendant, W. A. Clark, from a judgment made and entered on the fourth day of June, 1902, in an action wherein H. L. Hollister was plaintiff and the state of Idaho and W. A. Clark and others were defendants. From the judgment in that case and in another case, the state of Idaho appealed to this court (Hollister v. State, ante, p. 8, 71 Pac. 441), and the judgments of the lower court were affirmed. The appellant Clark allowed judgment by default to be entered against him, and this appeal is from such judgment and brings up the judgment-roll for our consideration. That portion of the judgment of which the appellant here complains is as follows: “And that plaintiff be, and he is hereby, permitted to build dams as shown on exhibit £A’ attached to the complaint, a duplicate whereof is attached to this judgment and hereby referred to and made a part hereof, and also to remove rocks -from the bed of Snake river at a point marked ‘Rapids to be blown out’ on said exhibit £A.’ ”

Counsel for appellant contend that the allegations of the complaint were not sufficient to authorize the entry of this portion of the judgment. In order to fully illustrate the position talien by the respective parties to this appeal, it will be necessary to set forth the greater portion of the complaint, together with an exhibit attached thereto and by reference made & part thereof. All the allegations contained in the complaint which in any way refer to the lands and premises to be condemned and sought to be taken by the plaintiffs are contained in paragraphs 3, 4, 5 and 7 and exhibit “A” of plaintiff’s complaint, and they are each respectively as follows:

“HI.

“That the premises hereinafter described and sought to be taken fox public use, are claimed by the State of Idaho, and by said State Board of Land Commissioners and the members thereof, as a portion of section thirty-six, township seventeen, east of range nine, south of Boise Meridian.

“That said section thirty-six was included in and is a portion of the lands granted to the State of Idaho by the Act of Congress of July 3, 1890. That plaintiff is informed and believes and therefore alleges that the lands hereinafter described and sought to be taken for public use are within the limits of and are a portion of said section thirty-six, and that said State of Idaho is the owner thereof.

“IV.

“That the defendants, W. A. Clark, Mrs. Dewey (a widow), E. L. Stone and J. A. Creighton claim to be the owners of said lands hereinafter described and sought to be taken for public use, but plaintiff alleges that said defendants are not the owners thereof and have no rights thereto.

“V.

“That the premises sought to be taken for public use are situate in Lincoln County, State of Idaho, and are bounded and described as follows, to wit:

“Commencing at a point north, twelve degrees fifteen minutes, west from the southeast comer of section 36, tp. 9 south ■of range 17 east, Boise Meridian 1847 feet, running thence north twelve degrees fifteen minutes west one hundred and ninety-one and one-half feet; thence south sixty-three degrees and forty-eight minutes east, two hundred fifty-two feet to Snake Biver; thence south thirty-two degrees, thirty-six minutes west along the river seventy and two-tenths feet; thence south fifteen degrees west along the river, fifty feet; thence south twenty-three degrees, forty-five minutes, east along the river, fifty feet; thence north sixty-three degrees and forty-eight minutes west, one hundred and seventy-five feet to the place of beginning, as more fully shown on the plat of said premises hereto attached and marked Exhibit ‘A/ and made a part hereof. That plaintiff also desires and proposes to construct the dams shown on said plat Exhibit ‘A/ and to remove the rocks from Snake Biver at the point indicated thereon.”

“VII.

“That the lands sought to be taken for public use are situated in the immediate vicinity of Shoshone Falls on Snake Biver, as shown on Exhibit ‘A/ that it is the purpose and object of plaintiff to utilize the waters of Snake Biver for the purpose of creating and manufacturing electricity for public use as hereinbefore set forth. That said lands sought to be condemned are necessary for use in diverting the waters of said Snake Biver and in constructing tunnels, canals and conduits from said river to the buildings and structures used in creating and manufacturing electricity. That it is also necessary to place the dams in said Snake Biver as designated on Exhibit ‘A’ and to remove the rocks from said river at the point thereon designated. That it is the purpose and object of plaintiff to divert the waters of said Snake River by removing rocks therefrom and placing dams therein and by constructing a tunnel ten feet high and ten feet wide, as designated on Exhibit ‘A’ and by means of pipes and conduits therefrom to the power house of plaintiff to be located as shown on said Exhibit ‘A/ and to equip said power-house with such machinery and appliances as may be necessary to create or manufacture electricity for. the purposes hereinbefore set forth. That defendants have refused to grant plaintiff the use of the premises sought to be taken.

“Wherefore plaintiff prays that it be ordered, adjudged and decreed herein that the premises described in paragraph five hereof, be taken for public use, as claimed by plaintiff; that plaintiff may place dams as indicated on Exhibit ‘A’ and may remove the rocks from said Snake River as indicated thereon; that the damages for the taking of property herein be assessed, that the conflicting claims of defendants herein be determined and plaintiff prays for all proper relief.”

The complaint closes with a prayer that the premises described therein and also indicated on exhibit “A” be condemned to a public use and that the damages therefor be assessed, etc. There is no question raised in this appeal as to any of the premises either described in the complaint or shown on the map which are situated in section 36, but it is contended that the description both as set forth in the respective paragraphs of the complaint and shown on the map confine the plaintiff’s right or recovery exclusively to the lands situated within section 36, and that although the map shows certain dams to be constructed in the bed of Snake river across the township line and beyond the limit of section 36, that the court was without jurisdiction as against a defaulting defendant to enter a decree covering the dams shown by the map. As will be seen from an examination of this map, it' is drawn to a scale representing forty feet to the inch as shown by it. It is also drawn to a north and south line as shown thereon, thus giving not only the scale but the angle to-which the map is drawn. While the bearing of each line is not marked on the map, nor is the length of the lines marked thereon, it is a simple matter for a practical surveyor or engineer to take this map and ascertain, therefrom both the length and bearing of each line as shown on the exhibit. Every line and point designated upon this map is capable of being definitely and certainly ascertained, and we must therefore conclude that the description and location of the premises as found upon this map falls within the maxim, “Id certim est quod cerium reddi potest

The most serious contention made by appellant is based upon the allegations of paragraph 3, wherein the plaintiff alleges that the premises sought to be condemned are located in section 36, and that therefore the allegations of the complaint as found in these respective paragraphs are at variance and in conflict with the description found upon the map, and that the description is therefore so uncertain as to amount to no description at all. We cannot agree with this contention. Uncertainty and ambiguity in a pleading can only be taken advantage of upon demurrer. It is only where there is a total lack of a necessary or material allegation that the defendant is justified in suffering a default and raising its insufficiency upon appeal; but where the allegation has been made and he attacks it upon its uncertainty or ambiguity, or the manner of making the allegation or language thereof, he must do so by proper demurrer.

In Bates v. Babcock, 95 Cal. 482, 29 Am. St. Rep. 133, 30 Pac. 605, 16 L. R. A. 745, the supreme court of California, in passing upon a question of this character, said: “It is only where there is in the compjaint an entire absence of averment of a fact essential to a recovery, so that no evidence of that fact could be received at the trial, that a judgment in favor of the plaintiff cannot be sustained; but, if the objection be merely that such fact is defectively alleged, evidence received under such averment, if sufficient, will sustain the judgment. While the complaint in the present case is not entirely free from criticism, and might have been made more certain and precise in some of its averments, yet we think that it contains a sufficient statement of facts to justify the court in receiving evidence thereof.”'

The supreme court of California announced the same doctrine in San Francisco v. Pennie, 93 Cal. 468, 29 Pac. 66; Schluter v. Harvey, 65 Cal. 158, 3 Pac. 659, and Garner v. Marshall, 9 Cal. 269. The foregoing authorities are all cited with approval in San Joaquin Lumber Co. v. Welton, 115 Cal. 1, 46 Pac. 735, 1057, where the court holds that this rule is clearly applicable to a defaulting defendant, saying: “The line of distinction between an uncertain or defective averment of a material fact, and a total want of such averment, is well defined by the authorities, especially in this state; and it has been uniformly held that, if the defect in the averment be merely that of uncertainty, it will be waived by failure to demur, especially on the ground of uncertainty, and of course by default.” (See, also, Fudickar v. East Riverside Irr. Dist., 109 Cal. 34, 41 Pac. 1024.)

This court, in Aulbach v. Dahler, 4 Idaho, 654, 43 Pac. 322, said: “If the complaint was ambiguous, unintelligible or uncertain, the defendant should have demurred on those grounds. Having failed to do that, he waived all right that he may have had on those grounds.”

But we are told that section 5216, Revised Statutes, is mandatory in its terms, and special reliance seems to be placed on the provisions of subdivisions 2 and 5 thereof. This section of the statute provides what a complaint in condemnation proceedings must contain, and the subdivisions cited as applicable in this case are as follows:

“2. The names of all owners and claimants of the property if known, or a statement that they are unknown, who must by styled defendants.”

“5. A description of each piece of land sought to be taken, and whether the same includes the whole or only a part of an entire parcel or tract. All parcels lying in the county, and required for the same public use, may be included in the same or separate proceedings, ’at the option of the plaintiff, but the court may consolidate or separate them, to suit the convenience of parties.”

A complaint in such cases must be in substantial compliance with the terms of these statutory requirements, but in ascertaining whether or not such requirements have been substantially met by the pleader, we apply the same rules and follow the same methods and manner of inquiry applicable in the consideration of the sufficiency of any other pleading. Applying those rules and principles, we therefore conclude that this complaint could not have withstood the assault of a special demurrer upon the grounds urged by appellant here, but appellant having allowed judgment to pass by default, and thereby admitting all the allegations of the complaint to be true, he cannot be heard to urge this uncertainty for the first time in this court. By his default he admitted the description contained upon the map and the allegation that he owned no interest in the properties described on such map as fully and completely as he admitted the allegations of the respective paragraphs contained in the complaint. (6 Ency. of Pl. & Pr. 115, and cases there cited.)

Considerable argument has been made upon this appeal as to whether or not the Snake river is a navigable stream and whether the court will take judicial notice of such fact, or if the same must be alleged and proven in the same manner as any other fact in the case. And following this argument the question has also arisen as to where the title to the bed of the stream rests, in case it should be held that the Snake- river is a navigable stream. These are questions of very serious import, and concerning which the plaintiff may hereafter be called upon to meet, but they do not properly arise upon this appeal, and we therefore express no opinion concerning them. Suffice it to say that if it should be conceded that the Snake river is a navigable stream and that the title to the bed thereof is in the state, that fact could not concern the appellant and he could not be heard to complain of the same here.

For the foregoing reasons the judgment is affirmed, with costs to respondent.

Stockslager, J., concurs.