Campion v. Simpson

HUNTLEY, Justice.

This litigation involves a reach of the Big Wood River south of the Warm Springs Bridge in Ketchum, Idaho. Campion owns a home with adjacent land on the east bank and Simpson owns property suitable for development on the opposite bank.

Prior to the late 1960’s, there were three channels of the Wood River in the vicinity of the Campion-Simpson properties, the main channels being designated by the parties as channels 2 and 3 for the purpose of this action, with the third and smallest channel being designated channel 1. There was an island between channels 2 and 3 which was wooded and had been in existence for more than thirty years.

This action arises as a claim for damages and for injunctive relief by Campion by virtue of the fact that in June 1974 Campion’s property was damaged by erosion and washout of the beach and river bank near his house, the loss of four or five trees near the house, and the washing away of the island and its trees which had provided Campion with a measure of privacy and seclusion.

Campion’s action against Simpson is based upon Simpson having diminished the water-carrying capacity of the river system, having redirected the river directly toward Campion’s property through the action of filling in and obliterating channels 1 and 2 during the period 1968-74, and Simpson’s further action of re-diking his blockage of channels 1 and 2 during the June 1974 flood when the river was attempting to re-enter and discharge a portion of its volume through channels 1 and 2.

The case was initially tried before Judge Kramer, who entered findings of fact, conclusions of law and judgment, which ruled in effect that Simpson’s blockage of channel 2 was tortious, that the blocking of channel 1 was not actionable, and that Campion was entitled to nominal damages in the sum of $500.00 and punitive damages of $500.00.

From that judgment, Campion appealed as to two issues: (1) that the court erred in ruling that the interference by Simpson with channel 1 was not tortious; and (2) that the court erred in failing to award substantial compensatory damages and substantial punitive damages.

After the appeal was filed, it was discovered that the court reporter had lost his notes and was unable to provide a transcript. Accordingly, at Campion’s request, this court remanded to the district court (Judge Kramer thereafter disqualified himself from further proceedings) for a trial the purpose of which was to establish an evidentiary record on two limited issues: (1) the status of channel 1; and (2) the award of damages for destruction of property belonging to Campion.

The record to be so reconstructed was to be used by this court to determine the issues raised on appeal, i.e., does the evidence support the findings of fact, and is there any error in the conclusions of law and judgment entered by Judge Kramer.

The record establishes that of the thirty-three findings of fact and twenty-nine conclusions of law entered by Judge Kramer, all are supported by substantial and competent evidence with the exception of his findings and conclusions related to two areas, those being his ruling that Campion could not recover damages for the blockage by Simpson of channel 1, and his award to Campion of general and punitive damages in the amounts of $500.00 each. We will discuss each issue in turn.

THE CHANNEL 1 ISSUE

With respect to channel 1, Judge Kramer found that Simpsón was engaged in filling up that channel (as well as channel 2) between 1968 and 1974 and that but for the filling of those two channels, much of the spring flood waters would have flowed through those channels, and that the quantity of and velocity of the water contained in channel 3 during high water periods would have been significantly diminished but for the closing of those two channels. He further found that the alterations of channels 1 and 2 by Simpson caused the Wood River to be channeled directly against the Campion property, damaging and eroding it and causing the property to be continually exposed in the future to the direct attack of the river.

The trial court further found that Simpson’s actions were intentional, that they were an interference with the public’s right in and to the use of the waters of the Wood River, and the beds, channels and banks thereof, and in finding 16 stated:

“There was evidence that the Defendant [Simpson] by filling Channel 1 and Channel 2 was engaged in an intentional and systematic scheme of enlarging his land holdings, but the evidence also could be construed to be that the Defendant was protecting his property.”

Despite its findings, the trial court held that Simpson’s filling of channel 1 was not actionable as to Campion because channel 1 was not “navigable” and was not an integral part of the Wood River because it did not carry a substantial quantity of water the year around. In so ruling the trial court erred.

As early as 1911 in Fischer v. Davis, 19 Idaho 493, 498-99, 116 P. 412, 413, this court recognized that

“[a] riparian owner of lands abutting upon a stream has no right to place obstructions out into the stream for the purpose of changing the natural course of the river, or for any other purpose that would do damage to a riparian owner on the opposite side or to owners of land abutting upon said stream either above or below.”

This rule was reaffirmed in Milbert v. Carl Carbon, Inc., 89 Idaho 471, 406 P.2d 113 (1965); Harper v. Johannesen, 84 Idaho 278, 371 P.2d 842 (1962); Chandler v. Drainage Dist. no. 2, 68 Idaho 42, 187 P.2d 971 (1947).

This-court has not limited this rule to navigable rivers. In Milbert v. Carl Carbon, supra, we stated:

“A riparian owner of land abutting upon a stream, whether navigable or non-navigable, has the right to place such barriers as will prevent his land from being overflowed or damaged by the stream, and for the purpose of keeping the same within its natural channel. A riparian owner, however, has no right to place obstruction into the stream for the purpose of changing the natural channel of the stream, or for any other purpose, that would do damage to the riparian owner on the opposite side or to owners of land abutting upon the stream either above or below. Boise Development Company v. Idaho Trust & Savings Bank, 24 Idaho 36, 133 P. 916 (1913); Fischer v. Davis, 19 Idaho 493, 116 P. 412 (1911).” (Emphasis added.) 89 Idaho 478.

Channel 1 was a natural part of the stream system. Since the trial court found that Simpson placed an obstruction in the stream system which partially blocked it and diverted the waters against Campion’s property causing damage thereto, Simpson’s wrongful acts give rise to a cause of action for which Campion is entitled to damages.

THE DAMAGE ISSUE

The trial court awarded Campion nominal compensatory damages of $500.00 plus punitive damages of $500.00 based upon an erroneous assumption that Campion had the burden of proving that Simpson’s actions were the “sole and proximate cause of the damage.” The court’s memorandum decision, incorporated by reference as a formal part of the findings and conclusions, reads in part as follows:

“His [Simpson’s] actions, however, cannot be found to be the sole and proximate cause of damage to Campion, but did contribute in a nominal way to the damage. That damage is five hundred dollars ($500.00) plus punitive damages of five hundred dollars ($500.00).”

It is not clear whether the court had reference to the fact that in large measure the flood was obviously an “act of God” or whether the court had reference to the testimony that other parties, including the City of Ketchum and Campion himself, had participated in other alterations to the river such as the construction of the Paynter Dike upstream years earlier, the reinforcement of that dike during the 1974 flood, and that alterations had been made by the City of Ketchum in constructing the bridge near the Campion-Simpson property prior to the flood.

However, neither of those reasons constitute a bar to Campion receiving full compensation against the tortfeasor he has sued.

With respect to the possible “act of God” defense, it must be noted that Simpson did not plead that defense, and had he done so it would not have constituted a defense under the rule of law enunciated by this court in Axtell v. Northern Pac. Ry. Co., Idaho 392, 398, 74 P. 1075, 1078 (1903), wherein this court stated:

“It has also been contended with much persistence both upon the oral arguments and in the briefs that the damage, if any, sustained by plaintiff, resulted from the acts of God and the forces of nature, and that the defendant is not liable therefor. Since this case must be sent back for a new trial, we have thought it best to make some observations upon this point. It must be conceded that if the position of the defendant is correct, and the fact can be established upon the trial, that the damage sustained by the plaintiff is due to vis major and the forces of nature, then plaintiff cannot recover. On the other hand, if the plaintiff should establish by a preponderance of the evidence that the defendant, by its wrongful acts, contributed to those causes, then we think it would be liable. The defendant cannot be held responsible for the destruction of plaintiff’s property by the floods poured out by nature; but if while those floods are raging the defendant, by its unlawful acts, dams up the streams and means of escape for those waters, and thereby causes them to break over the banks and wash away and destroy the property of the plaintiff, we think the defendant would be liable.” (Emphasis supplied.)

Judge Kramer made specific findings that the filling of channels 1 and 2 by Simpson constitute a public nuisance and a trespass in the channel of the Wood River.

As to the possible responsibility of third parties, it must be noted that the court found no damages in favor of Simpson on his cross-complaint against those possible third parties, the parties did not try this case as a comparative negligence action under the Idaho Contribution Among Joint Tortfeasors Act, and the court did not assess any percentage of negligence or causation as against Campion or any third party. Additionally, there is no motion pending or unresolved before the trial court by Simpson requesting dismissal upon failure to join an indispensable party.

The court, having found that Simpson’s acts were a proximate cause of Campions’ losses, should have awarded Campion full compensatory damages under the rule enunciated in the jury instructions approved in Valles v. Union Pacific RR., 72 Idaho 231, 238, 238 P.2d 1154, 1158 (1951):

“[W]here several causes combine to produce injuries, a person is not relieved from liability because he is responsible for only one of them, it being sufficient that his negligence is an efficient proximate cause, without which the injury would not have resulted, and that such other cause is not attributable to the negligence of the plaintiff. It is no defense to any of the several defendants that the injury would not have resulted from his negligence alone, without the concurrent negligence or wrongful act of the other defendants.”

Accordingly, we hold that Simpson is liable for all of the damages properly established at the hearing before Judge Granata.

At this juncture, this court would have the alternative of reversing and remanding the case for findings as to general and punitive damages by Judge Granata, or, determining from the record, the damages which are established.

Judge Granata has already entered findings of fact and conclusions of law, evidencing his view of the damages proven, which findings and conclusions were the subject of a separate appeal filed by Owen Simpson, no. 13573, which findings and conclusions were stricken by this court upon dismissal of that appeal on the ground that the entry thereof went beyond the bounds of the remand order, which was limited to reconstruction of an evidence record.

Upon review of this record, both as against the findings and conclusions of Judge Kramer and the findings and conclusions of Judge Granata, it appears that there are certain damage issues which cannot be resolved without some further trial court proceedings, and therefore we remand the case to the trial court for resolution of the damage and injunctive relief issues pursuant to the following guidelines:

(1) The record establishes Campion’s right to compensatory damages for emergency riprapping performed at the time of the June 1974 flood in the sum of $2,400.00, and the sum of $8,885.00 for future riprapping.

(2) The trial court (Judge Granata), relative to the request for injunctive relief, found as follows:

“The river will not regain its stability until Channel 1 is reopened. It is necessary to reopen Channel 1 to abate or remove the risk to the plaintiff’s property and to the safety of their home created by the actions of the defendant.”

He then directed that Simpson remove the obstructions to channel 1 and any existing obstructions in channel 2 and that in the event there were any objections to that requirement that the parties would have another hearing before the court.

He then proceeded to award Campion judgment of $20,000.00 for additional risk of increased flooding due to lower market value from that increased risk, and $50,-000.00 for general reduced market value due to the loss of the island, several large mature trees, the beach area, a portion of the Campion yard, and the loss of seclusion and privacy.

We see the following difficulties with the totality of those proposed awards. First, if channel 1 and 2 are restored to their natural state, the record is not clear as to whether there will remain the increased risk and lowered market value to support the $20,000.00 award.

Second, with respect to the proposed award of $50,000.00, there are certain basic and material defects in the testimony provided by Campion. In Smith v. Big Lost River Irrig. Dist., 83 Idaho 374, 385, 364 P.2d 146, 152 (1961), the rule is stated:

“ ‘If the land is permanently injured, but not totally destroyed, the owner will be entitled to recover the difference between the actual cash value at a time immediately preceding the injury and the actual cash value of the land in the condition it was immediately after the injury, with legal interest thereon to the time of the trial.’ ”

Mr. Campion’s testimony of a $50,000.00 dimunition in value was based on his statement that the property would be “worth $50,000.00 more today [August 1979] if the island, trees and beach were still there.” Such testimony is not competent to establish the “before and after” value in 1974.

Likewise, the testimony of the appraiser, Mr. Monge, was based upon his initial premise that the property as of the time of the trial [August 1979] was worth $350,-000.00 to $400,000.00. He testified that the flood caused a 15% change in value, but never applied that to 1974 values.

He then stated that as of 1979 the property would be worth $50,000 to $75,000 more if it had the privacy and seclusion that it previously had.

In short, there is no competent evidence in the record as to the before and after value of the property in 1974, and no award can properly be made for the alleged $50,000 diminution in value. Further, no award should be entered for the $20,000 “additional risk” factor unless the court finds the risk remains after channel 1 is reopened or that the risk remains because channel 1 cannot be reopened.

Accordingly, we remand to the trial court for further proceedings on the damages and injunctive relief issue in accordance with this decision. We leave to the trial court the determination of whether at this date injunctive relief remains appropriate.

The opening of channel 1, if ordered by the trial court, any further work ordered on channel 2, and any riprapping to be performed on the east bank shall all be done in accordance with a plan first approved by the Idaho Department of Water Resources.

We also remand for determination by the trial court the fixing of punitive damages. The punitive damages shall be measured by the standards enumerated for the “non-violent private business dispute” category in Linscott v. Rainier National Life Insurance Co., 100 Idaho 854, 606 P.2d 958 (1980), incurred by the Campions in presenting the initial hearing before Judge Kramer together with those same expenses attendant upon the remand hearing and his attorney fees on this appeal; but excluding those expenses in connection with the initial hearing before Judge Granata and the attorney fees in appeal no. 13753.

Costs and attorney fees to the appellant, both to be fixed by the trial court.

DONALDSON, C.J., and McQUADE and HARGRAVES, JJ., Pro Tern., concur.