E. J. POLEY and Elizabeth M. Poley, his wife, Appellants,
O. L. BENDER and Laura M. Bender, his wife, Appellees.
Rehearing Denied Jan. 19, 1960.
[87 Ariz. 36] Locklear & Wolfinger, Prescott, for appellants.
Charles E. McDaniel and Jack L. Ogg, Prescott, for appellees.
This is an action in tort for fraud and misrepresentation as to the adequacy of a domestic water supply in the sale of a ranch. O. L. Bender, purchaser of the ranch and appellee herein, chose not to sue for rescission and restitution based on the claimed misrepresentation; instead he elected to affirm the sale and sue for damages for the alleged fraud. The action was brought in the Superior Court of Yavapai County, wherein the court, siting without a jury, rendered judgment on the complaint for the plaintiff and assessed damages against the seller, E. J. Poley, in the amount of $1,717.31. This appeal followed.
The following facts are undisputed:
The defendant-appellant E. J. Poley (hereinafter referred to as Poley) was, since 1924, the owner and operator of what is locally known as the 'Poley Ranch' in the Tonto Springs-Skull Valley area, located some 20 miles west of Prescott. In the first year after he moved on to the ranch--some time in 1925--a well, some 3 feet in diameter and 150 feet deep, was dug by hand on the property. The water pump
was first operated by a 3 horsepower gas engine; in later years the engine was replaced by a windmill. Poley used a 1,000-gallon storage tank and two water troughs with an aggregate capacity of approximately 2,000 gallons. During the years that Poley and his wife lived on the ranch, they wholly relied upon this well to supply water for their house, livestock (he had a permit to run 36 head of cattle), flowers, trees, and shrubbery. In addition, Poley frequently gave water to neighbors and passers-by who ran short (reportedly including Bender, who needed water while [87 Ariz. 37] he was drilling the well on his own property). As Poley said on the witness stand, 'Everyone short of water, didn't have a well, mine was it.' No evidence was presented to contradict the showing made by defendants that there was sufficient water for these purposes during the 27 years the Poleys occupied the ranch. On the contrary, all the testimony covering this period tended to support Mrs. Poley's statement that, 'We had all the water for everything we wanted.'
On October 7, 1952, Poley conveyed the ranch property (a homestead entry) to O. L. Bender, the plaintiff-appellee herein (henceforth referred to as Bender). Bender did not take possession of the premises until early in January, 1953, at which time his son-in-law, Richard Hargus, moved onto the ranch. At that time the old 1,000-gallon storage tank used by Poley was replaced by a tank with a 2,000-gallon capacity.
About a week or ten days after Hargus took possession of the ranch for Bender, it was testified that they began to experience trouble with the well. When they were unable to get any water, Bender and Hargus pulled the cylinder pump rod and found that the 'leathers' had worn out. As described in the record, the 'leathers' are the leather couplings on the plunger of the pump which operate to seal the water in and prevent it from escaping as it is pulled up by the pump action. It appears that the regular submersion in the water is generally sufficient to lubricate the leathers and to keep them from wearing out. However, if the pump is operating in a dry hole without this natural lubrication effect, the friction will wear away the leathers in a short time. When the leathers are worn out, the sealing of the plunger is ineffective and the pump fails to pull any water.
Poley testified that during his long occupancy of the ranch he had not needed to change the leathers more than twice; whereas Bender and Hargus both stated that they found it necessary to replace the leathers three times in some 30 days. They further testified that--after the leathers had been replaced--the well would function satisfactorily for a week or ten days; then the leathers would wear out again and the pump would cease to function.
At the trial Bender introduced evidence of occurrences after he took possession of the ranch in January 1953. This evidence was not substantially contradicted, and the facts adduced from a physical inspection of the well bottom are as follows: the maximum depth of water standing in the well was variously estimated at from 15 inches to 3 1/2 feet (Poley had said that he thought the well held 3 1/2 to 4 feet of water); at the high-water level the capacity was estimated to be some 100 gallons; when the well had been pumped dry (by the use of a special portable submersible pump capable of pumping 20 gallons a [87 Ariz. 38] minute) it required about three hours for the underground water to trickle in and refill the sump; Bender timed it, and he stated that the water therein would run the pump jack for about 10 or 12 minutes, after which--if the windmill was kept running--the pump ran on a dry cylinder until the well refilled. By periodically turning off the windmill and allowing the water level to rise to capacity, it was found that the well would produce approximately 500 gallons per day.
Rather than continue at this rate, Bender hired a well-driller to improve the well. As a result of this, an 8-inch shaft was drilled down another 150 feet, making the total depth some 300 feet. A good flow
of underground water was encountered that produces 10 gallons a minute continuously, and it cannot be pumped dry with the submersible pump equipment. It is the cost of this new drilling and pipe which Bender sought to--and by the court's judgment did--recover in this action.
The representation upon which Bender bases his complaint was admittedly made by Poley shortly before the date of the sale, i. e., October 7, 1952. It is alleged in the complaint, and is ...