Shaw v. City of Rupert

ON REHEARING

DONALDSON, Chief Justice.

A sewage lagoon system, designed by H & V Engineering, Inc., constructed by Galey Construction Co., and operated by the City of Rupert, is located immediately west of the real property owned by the plaintiffs, the Shaws and the Cranes. On March 16, 1979, one of the lagoons flooded, and the partially treated sewage flowed across the plaintiffs’ land for the distance of approximately IV2 miles. Based upon the alleged damages that occurred from the flooding, the plaintiffs brought this suit against the City of Rupert, H & V Engineering, Inc., and Galey Construction Company.

The plaintiffs alleged that the defendants were negligent in the design, construction, operation and maintenance of the sewage lagoon. Each of the defendants answered, and filed various cross-claims. Defendants also moved for partial summary judgment, contending that plaintiffs were not entitled to recover damages for diminution in value of their land due to potential future flooding. The district court granted the defendants’ motion, and then certified the partial summary judgment pursuant to I.R.C.P. 54(b). This appeal followed.

For many years, this Court has followed the rule enunciated in Young v. Extension Ditch Co., 13 Idaho 174,182, 89 P. 296, 298 (1907), as to the measure of damages for injury to real property:

“If land is taken or the value thereof totally destroyed, the owner is entitled to recover the actual cash value of the land at the time of the taking or destruction with legal interest thereon to the time of the trial.
*528“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.
“If the land is temporarily but not permanently injured, the owner is entitled to recover the amount necessary to repair the injury and put the land in the condition it was at the time immediately preceding the injury, with legal interest thereon to the time of the trial.”

See also Smith v. Big Lost River Irrigation District, 83 Idaho 374, 364 P.2d 146 (1962); Alesko v. Union Pacific Railroad, 62 Idaho 235, 109 P.2d 874 (1941); Falk v. Humbird Lumber Co., 36 Idaho 1, 208 P. 404 (1922); Boise Valley Construction Co. v. Kroeger, 17 Idaho 384, 105 P. 1070 (1909).

In this case, the district court’s memorandum opinion states that “[tjhere is no indication in the record before the court that future flooding is an inevitable consequence of the existence of the sewage treatment lagoons. In the absence of clear proof that the flooding problem is certain, it is improper to characterize the injury as permanent.” The court, therefore, ruled as a matter of law that plaintiffs are precluded from recovering for alleged diminution in the value of their land, since the anticipated future flooding is not a permanent injury-

We have previously stated the rule that an injury is temporary “if the cause of the injury is abatable or preventable and the injury capable of rectification by reasonable restoration.” Alesko v. Union Pacific Railroad, supra, 62 Idaho at 240,109 P.2d 874. However, in this case, the district court did not apply this rule, but determined instead that the injury was temporary because future flooding was not “certain.” We find the district court’s “certainty test” to be too restrictive, and hold that it is not necessary to prove future certainty in order to show permanent injury, but rather only future probability. McCormick, Damages for Anticipated Injury to Land, 37 Harv.L.Rev. 574, 595 (1924). We note that the test we cited in Alesko is not incompatible with the test of “future probability” which we today enunciate. In order for one to prove future probability, and thereby show permanent injury (via the test we express today), the cause of the injury would most likely be unabatable, thus indicating (via the Alesko test) an injury that would not be temporary.

The defendants argue that under the case of Lavin v. Panhandle Lumber Co., 51 Idaho 1, 1 P.2d 186 (1931), the plaintiffs cannot recover damages for anticipated flooding but must bring a new action after every flood. However, in Lavin the issue centered around the running of the statute of limitations. Nothing we read in Lavin precludes a party from pleading and attempting to prove diminution in value as the plaintiffs attempted to do here.

On a motion for summary judgment, the evidence is to be construed most favorably toward the non-moving party. Taylor v. Choules, 102 Idaho 222, 628 P.2d 1056 (1981); Palmer v. Idaho Bank & Trust of Kooskia, 100 Idaho 642, 603 P.2d 597 (1979); McKinley v. Fanning, 100 Idaho 189, 595 P.2d 1084 (1979). Here, the direct testimony of the plaintiffs’ engineer, although perhaps conflicting and self-contradictory, nevertheless raises a genuine triable issue of fact as to whether future flooding is probable. Therefore, we reverse the partial summary judgment and that portion of the order dated December 22, 1981, excluding evidence of other defects or problems with the lagoon, and remand for a trial on the issue.

Costs to appellants.

No attorney fees on appeal.

SHEPARD, and BISTLINE, JJ., concur.