Alexander v. Winters , 23 Nev. 475 ( 1897 )

The appellant brought, this action to recover a judgment for damages against the respondents, caused by flooding water. From the judgment in favor of the respondents, and from an order denying appellant's motion for a new trial, this appeal has been taken.

The complaint charges that in May, 1896, the respondent opened the gates of the dam used for storing water in Washoe Lake, and discharged large quantities of water therefrom in excess of what was necessary to irrigate lands, thereby increasing the flow in Steamboat Creek and causing the creek to overflow its banks and to flood the appellant's land, and to wash sand and gravel on the said land, and to wash out the head gates and irrigating boxes, and to fill up her irrigating ditches, making it impossible for her to save her hay crop. It is further charged in said complaint that on the 12th day of July, 1896, respondent again opened the gates of said dam, and discharged into said Steamboat Creek large quantities of water in excess of what was necessary to irrigate the land lying below said lake, thereby causing said creek to overflow its banks, and to wash sand and gravel upon the appellant's meadow, making it impossible for the appellant to cut and save her crops of hay.

The respondents filed separate answers denying the averments of the complaint, and by way of new matter alleged, in substance, that the Washoe Lake Reservoir and Galena Ditch Company had constructed a dam at the outlet of Washoe Lake for the purpose of holding back the waters to irrigate lands, and that the appellant was a member of said corporation, and, as such, assisted in the construction and maintenance of said dam, and used the waters thereby restrained to irrigate her lands and the crops growing thereon.

The facts disclosed by the record, in brief, are: That in the summer of 1896, and before that time, the appellant owned and occupied certain lands in the lower end of Steamboat Valley, which were irrigated by the waters of Steamboat Creek. She and her grantors have claimed and owned said land since about 1860, and have raised and harvested crops of hay thereon since that date. Steamboat Creek is a natural watercourse, with its principal source in Washoe Lake, flowing over and through the lands of appellant. Brown's Creek and Galena Creek are tributaries of Steamboat Creek, the waters thereof flowing into Steamboat Creek above the appellant's land. Huffaker's Creek is also tributary to Steamboat Creek, and flows therein on the appellant's lands. Many gulches and ravines discharge their waters into Washoe Lake and Steamboat Creek and its tributaries above appellant's lands during the spring season and times of ``freshet. The volume of water flowing into Steamboat Creek is variable, at times being very large, and at other times not sufficient to irrigate the lands of the farmers residing thereon, and exercising the right to use the waters for that purpose.

Ordinarily three or four thousand inches of water flow naturally out of Washoe Lake into Steamboat Creek, and in flood times that creek carries about ten thousand inches. The lands of the appellant are in the lowest portion of Steamboat Valley, and during the times of high water are flooded. In 1860, the parties claiming to own these lands, and certain other parties, constructed a ditch from a point in Steamboat Creek about one mile above the appellant's said land, and over a part thereof, to Huffaker's Creek. This ditch was constructed for the purpose of turning the waters of Steamboat Creek out of its natural channel below the head of said ditch, thereby drying and making available for hay and grazing the lands adjacent to the said channel, and for the further purpose of irrigating the lands of the parties constructing said ditch. This ditch was constructed upon grounds higher than those through which the natural channel passed. The action of the water flowing through this ditch had gradually deepened and widened the same from the point where it connected with the creek to and partially across the appellant's land. This ditch for a considerable distance above Huffaker's Creek is shallow and narrow. Since the waters of Steamboat Creek were turned into this ditch in 1860 the old channel has filled with sediment and become nearly obliterated. The appellant and her immediate grantor, for whom the appellant was agent, had constructed and maintained dams in this ditch above appellant's lands, thereby retarding the flow and holding back the waters so that the same overflowed the banks thereof, spread over said lands, and irrigated the same. These dams caused a sediment to settle in the ditch and fill the same, and in 1895 the appellant caused to be constructed upon her own land in said ditch a dam for this purpose. She also caused ditches to be constructed at right angles with the channel from this dam, and caused bulkheads to be put in each. These ditches have less fall than the channel which was obstructed, and were not sufficient in size to carry the water in times of high water, and thereby caused the channels both below and above to fill up with sediment, in consequence whereof the water overflowed appellant's land.

The waters of Steamboat Creek being insufficient to irrigate the lands thereon during seasons of scarcity, it was determined by the farmers residing thereon to build a dam at the outlet of Washoe Lake for the purpose of storing the waters therein during the winter and spring months, and at times when there was more water than was needed for irrigation. In pursuance of this purpose notice was posted by a portion of the farmers claiming the surplus water of Galena Creek, and an easement or ditch to conduct the same into Little Washoe Lake, and the right to construct and maintain a dam at the outlet of Little Washoe Lake, for the purpose of storing the waters therein. The respondent Winters owned the land where the dam was to be built and the land on the border of the lake, which would be flooded by the building of the dam, and he objected to the construction of the dam, unless upon condition and subject to his control. These conditions were accepted by the ranchers and were contained in a written agreement between the parties, whereby Winters granted to the farmers the right to make a dam of solid masonry across the outlet of Washoe Lake of such dimensions in height as the farmers may deem proper for the purpose of flowing water back upon said lake for storage purposes. He also granted the right to make and construct a ditch over his land for the purpose of carrying the waters from Galena Creek into said lake to be stored for use in irrigation. It was further provided that the dam should not raise the waters above the level of the lake at high-water mark. It was also further provided that Winters should have the absolute control over the flood-gates and waterways at all times, and also control over the flood-gates and waste-ways of said dam at any time after the 1st of July in each year. This agreement was made on the 18th day of May, 1889. On the 5th day of September, 1889, the farmers locating and claiming the right to construct the dam and ditches above referred to, conveyed their rights to the respondent Winters, which conveyance was duly recorded.

On the same date certain of the farmers locating and claiming the rights above referred to made and filed articles incorporating the respondent, the Washoe Lake Reservoir and Galena Ditch Company. The purpose of said incorporation, as expressed in the certificate thereof, was to construct a dam at the outlet of lower Washoe Lake, and to construct and maintain a ditch to divert water from Galena Creek to lower Washoe Lake, and there store the same for stock, domestic, irrigation and mechanical uses. Certain farmers owning land upon Washoe and Steamboat Creeks were the promoters of this corporation, and the appellant, acting as the agent of her immediate grantor, was also one of the promoters of the same. It also appears that, at the time of the injury complained of, and for some time previous thereto, that appellant was an owner of the stock of said corporation; that for a long time previous, acting as agent for her immediate grantor, she had participated in the proceedings of said corporation, and had claimed the benefits thereof. She admits that she had knowledge of this agreement between Winters and the farmers. In 1889 the corporation constructed the dam at the outlet of Little Washoe Lake, since which time said corporation has exercised the right for which it was created under the agreement with the said Winters. The appellant has participated in the meetings of the corporation, either as agent of her immediate grantor, or as a stockholder thereof, during these years, and has paid the assessments levied upon the stock by herself and her grantor.

The year 1896, respecting the water supply about Washoe Lake and its vicinity, was unusual. The snows upon the adjacent mountains remained longer than usual; unusual and heavy storms prevailed in May, and Steamboat Creek and its tributaries were full and at times overflowed their banks during the months of May, June and July of that year. On the 29th day of May a great storm filled the banks of those streams, overflowed the same, carried away dams, bridges and bulkheads, and washed sediment and debris over the flooded lands. On the 5th day of May, 1896, the gates of the dam at the outlet of Washoe Lake were raised by the agent of the corporation upon the direction of the respondent Winters, and were kept open until the 15th. of June, at which time they were closed. It seems that the lands flooded by the dam on the borders of Washoe Lake belonging to Winters were meadow lands, and the hay growing thereon is usually harvested during July. On the 12th day of July of that year the gates of the dam were again raised by the company, at the request of Winters, pursuant to said agreement, and there were discharged therefrom for some time about 3,500 inches of water into Steamboat Creek. At this time the lands of the appellant were partially flooded, and the waters discharged from the lake ran down upon and spread over a part of appellant's meadow, and prevented her from harvesting the same.

The natural channel of Steamboat Creek above the ranch of the appellant is sufficient to carry within its banks all the water turned therein during July and August, 1896, and has been since 1889, except a small part thereof. The part not sufficient to carry the water has been obstructed and filled with sediment and debris, which has settled therein by reason of the dams and bulkheads maintained by the appellant and her grantor. It further appears that, in the latter part of June, or early in July, the bulkhead and dam on appellant's ranch were out of repair; that the water was running under the bulkhead and over her lands, and could not be controlled under the conditions of the channel. Prior to 1896 the quantity of water which came down Steamboat Creek was not sufficient to do appellant much, if any, injury, and was often insufficient to irrigate her lands. It further appears that the very large quantity of water stored in 1896 in Washoe Lake, and that the very large quantity of water flowing into Steamboat Creek from said lake, and from streams and ravines tributary to Steamboat Creek, was due to the causes above set out.

The record also discloses that the appellant, before the commencement of this action, had commenced an action against certain other parties for damages growing out of flooding waters during this season, but, as the facts connected with this suit will not in any manner affect the decision of this case, they are omitted.

Upon the facts above set out, the court found that the appellant had been damaged by not being able to harvest her crop in the sum of $500, but gave judgment for the respondents.

The errors assigned are: First, that the findings, conclusions, judgments, decisions and decrees of the court are not supported by the evidence, and are contrary to the evidence. Second, error of the court in rendering a decision, judgment and decree in favor of the respondents.

Without passing upon all the contentions presented by the briefs, we find in the record reason for affirming this judgment. The appellant was a promoter of the project to construct a dam at the outlet of Washoe Lake for the purpose of storing water for irrigation, either as owner of some interest in said land, or as the agent of her immediate grantor. She was in control of the land as the owner of some interest therein, or as the agent of her immediate grantor, before and at the time of the construction of the dam. She was present at the meeting when the corporation was formed. Before the formation of the corporation she was anxious to have an interest in the project and was then informed of its purpose and objects. She requested the witness Crane to obtain such an interest; she discussed the height of the proposed dam. She subscribed for stock in the name of her immediate grantor; she paid assessments upon this stock for the purpose of constructing the dam. The dam was discussed by her during its construction; she attended some of the meetings of the stockholders, and took part therein; she accepted the benefits of the stored waters to irrigate the land during the dry months of the year; she was cognizant of the agreement with Winters. The dam could not have been constructed without obtaining a concession from the defendant Winters, and she must have known this fact. It is also apparent, from all the facts, that the dam was constructed by the corporation under the contract with Winters; that the waters so stored were used thereunder and the flow of the water was regulated thereby. It is a well-settled proposition of law that a corporation may ratify an agreement made by its promoters. Such ratification may be implied from the acts of the corporation without an express acceptance.

The liability of the corporation under these circumstances does not rest upon a supposed agency of the promoters, but upon the immediate and voluntary act of the company. If the contract is within the corporate powers of the corporation, it may, when organized, expressly or impliedly assume the responsibility of the same, and thus make it a valid obligation of the corporation. This is especially true if the agreement appears to be a reasonable means of carrying out any of the corporate powers or authorized purposes. (Pratt v. Oshkosh Match Co., 62 N. W. Rep. (Wis.) 84; Huron PrintingCo. v. Kittleson, 57 N. W. Rep. (Dakota) 233;Weatherford R. Co. v. Granger, 28 S. W. Rep. (Tex.) 425; Colorado Water Co. v. Adams, 37 Pac. Rep. 39; Bruener v. Brown, 38 N. E. Rep. (Ind.) 318; Cook on Stock and Stockholders, vol. 2, sec. 707.)

The respondent, the Washoe Lake Reservoir and Galena Creek Ditch Company, ratified by its acts the Winters contract. This contract is clearly within the powers of this corporation. The purposes of the corporation could not have been accomplished without the concessions contained in this contract. The conditions of the contract, whereby Winters reserved the right to control the head gates of the dam, for the purpose of protecting his own property, are reasonable, and the corporation, having accepted the benefits of this agreement, cannot repudiate its burdens. Those rights were exercised by Winters from the date of the construction of the dam up to the time of the alleged injury. The appellant during all these times, either as agent of her immediate grantor, who was a stockholder of said corporation, or as a stockholder of said corporation, accepted the benefits arising under this contract in the irrigation of said land, and acquiesced in the exercise by Winters of those rights reserved in the contract.

It is well settled that a person cannot accept and reject the same instrument, or, having availed himself of it as to part, defeat its provisions in any other part. (Hermann on Estoppel, vol. 2, sec. 1028, citations in note.) The same doctrine is forcibly stated by this author in section 1049 and section 1050 of the same volume, wherein he says: "A person shall not be allowed at once to benefit by and repudiate an instrument, but, if he choose to take the benefit which it confers, he shall likewise take the obligations or bear the onus which it imposes; no person can accept and reject the same instrument. * * * He who accepts a benefit under a deed, a will, or other instrument, must confirm the whole instrument, conforming to all its provisions, and renouncing every right inconsistent with them."

The appellant and her grantor considered it necessary that this dam should be constructed for the purpose of storing water to irrigate said lands. The dam was constructed under the Winters contract. She and her grantor accepted the benefits of this contract, and she must now accept the burden imposed by it. Whatever damages she sustained in May and July, by reason of the acts of the respondents, arise from the exercise of the rights under this contract, and the appellant, as a stockholder, under the peculiar circumstances of this case, cannot complain of these acts.

For these reasons the judgment of the district court will be affirmed.