Albrethson v. Carey Valley Reservoir Co

• Citation: 67 Idaho 529,186 P.2d 853
• Decision Date: 12 November 1947
• Docket Number: 7367
• Parties: ALBRETHSON v. CAREY VALLEY RESERVOIR CO
• Court: Idaho Supreme Court

186 P.2d 853

67 Idaho 529

ALBRETHSON v. CAREY VALLEY RESERVOIR CO

No. 7367

Supreme Court of Idaho

November 12, 1947

Rehearing Denied Dec. 4, 1947.

Rehearing Denied December 4, 1947.

Appeal from District Court, Fourth District, Blaine County; D. H Sutphen, Judge.

Affirmed.

Bissell & Bird, of Gooding, for appellant.

The owner of a ditch is only bound to use, that degree of car and caution, in the construction and operation of the ditch, as an ordinarily prudent man would exercise in like instances, and in accordance with the standards adopted and employed in the vicinity -- (in this instance, the Wood River Valley). Wolf v. St. Louis Independent Water Co., 10 Cal. 541; Todd v. Cochell, 17 Cal. 97, 98; Everett v. Hydraulic Flume Tunnel Co., 23 Cal. 225; Campbell v. Bear River and Auburn Water and Mining Co., 35 Cal. 679.

And if the ditch is so maintained and operated, the owner of the ditch is not guilty of negligence, and no recovery can be had. Nahl v. Alta Irrigation Dist., 23 Cal.App. 333, 137 P. 1080; North Sterling Irr. Dist. v. Dickman, 59 Colo. 169, 149 P. 97, Ann.Cas.1916D, 973; North Sterling Irr. Dist. v. Gehrig, 27 Colo.App. 551, 149 P. 1193; Bray v. Cove Irr. Dist., 86 Mont. 562, 284 P. 539; Wiles v. Farmers Irr. Dist., 117 Neb. 288, 220 N.W. 261; Spurrier v. Mitchell Irr. Dist., 119 Neb. 401, 229 N.W. 273, 74 A.L.R. 884; Longmire v. Yelm Irr. Dist., 114 Wash. 619, 195 P. 1014-3; Weil on Water Rights page 537; Middelkamp v. Bessemer Irrigating Ditch Co., 46 Colo. 102, 103 P. 280, 23 L.R.A.,N.S., 795.

The mere fact of seepage from a ditch is not negligence, and is not evidence of negligence. Paolini v. Fresno Canal & Irrigation Co., 9 Cal.App. 1, 97 P. 1130; Shields v. Orr Extension Ditch Co., 23 Nev. 349, 47 P. 194.

James, Shaw & James, of Gooding, for respondent.

In an action against the owner of a canal for damages caused by water seeping from such canal, where the defense is set up that water coming from higher irrigated lands was responsible for the damages in question, it is for the jury to determine the extent of such damages caused by the leakage from the canal. Stephenson v. Pioneer Irrigation District, 49 Idaho 189, 288 P. 421, 69 A.L.R. 1225.

A person guilty of negligence cannot avoid responsibility therefor on the grounds that others are also guilty of negligence contributing to the same injury. McCarty v. Boise City Canal Co., 2 Idaho (Hasb.) 245(2) and on page 250, 10 P. 623. (In the above case, the contention was made that irrigation water from lands of the plaintiff and also from lands of third parties had caused or at least contributed to plaintiff's damage, which is the same contention as is made in the case at bar.) See also Stephenson v. Pioneer Irrigation District, 49 Idaho 189 at page 196, 288 P. 421, 69 A.L.R. 1225.

Givens, Justice. Budge, C. J., and Holden, Miller, and Hyatt, JJ., concur.

OPINION

Givens, Justice.

Respondent, for himself and as assignee of his share-crop landlord, contending appellant, a mutual cooperative nonprofit irrigation company, negligently maintained and operated its irrigation canal, sued and recovered damages for crop loss on seven acres of his land for 1940 and forty acres in 1941; claimed to have resulted from water negligently and injuriously leaking and seeping from appellant's canal into the land described, whereby the enumerated and evaluated crops did not mature.

Appellant denied water seeped or percolated from the canal to respondent's injury or that he was damaged in the amount sued for because of its negligence or otherwise; and as affirmative defense urged estoppel because respondent had rented the land with full knowledge of the existence of the ditch, the manner in which it was maintained and had participated in the use thereof: i. e. evidently using water therefrom; and as a second affirmative defense, alleged the land in question was naturally soggy, sodden, boggy, tule infested and swampy and for years had been a natural, boggy swamp and that any waterlogging thereof was occasioned by water flowing from or on to the land naturally from the hills to the north, east and south thereof; that appellant's ditch in fact helped to cut off or prevent some of such waters from percolating into respondent's land and was, therefore, a benefit to him and that the adjacent hills are water-bearing hills and contributed whatever water there was that caused respondent's land to be wet.

The appeal seeks relief from the verdict and judgment for respondent, on two main grounds: First, the evidence was insufficient to show the canal was negligently maintained or that the water-logged condition of respondent's land was due to water escaping therefrom, thus tersely expressed by appellant's brief:

"An examination of the physical facts, and the pleadings in this case narrows the issue presented to one question: 'Was the defendant's negligence in the operation and maintenance of its canal during the year 1940 and 1941, the proximate cause of defendant's alleged damage?'" and second, instructions erroneously given and refused.

The portion of respondent's land asserted to have been injured is largely in Section 9, a small part being in Section 10, Twp. 1 So., Range 21 East, B.M. and slopes to the south and west in a natural depression, cove, basin or swale between hills high on the north, lower to the east and south. The location of the land and appellant's canal, which extends from the southeast to the northwest along the southern boundary of respondent's land, being separated therefrom by a dirt road and a fence, is graphically portrayed in Plaintiff's Exhibit B, set forth herein.

[SEE MAP IN ORIGINAL]

A lateral of the Little Wood River Canal with point of diversion about a mile and a half northwest of the northwest corner of the northeast forty in Section 9, extends in a semi-circle around respondent's land east, south and west, terminating at a point in the southern part of said forty and parallels in part or extends into a drain ditch along the southern part of respondent's land, likewise shown on the map. Respondent's main water supply is from this ditch. The seeped area is bounded by hatched lines, with the claimed leaks in appellant's canal indicated by the word "seep" where it was testified by witnesses, water was leaking or seeping out of the canal banks into the borrow pits on both sides of the road and out into respondent's field. A reservoir on Fish Creek to the east of the area involved is the source of appellant's canal, which emerges from a tunnel in the southeast corner of the map, and after a drop of 28 or 30 feet in one thousand feet, extends west about 6000 feet as indicated, with an average fall through that area of about one foot in one thousand feet.

This court early announced and has consistently adhered to the proposition that an owner of an irrigation ditch is liable for damages resulting from negligence in constructing or maintaining the ditch. McCarty v. Boise City Canal Company, 2 Idaho 245, 10 P. 623; Arave v. Idaho Canal Company, 5 Idaho 68, 46 P. 1024; Wilson v. Boise City, 6 Idaho 391, at page 404, 55 P. 887; Stuart v. Noble Ditch Company, 9 Idaho 765, 76 P. 255; Burt v. Farmers' Co-Operative Irr. Co., Ltd., 30 Idaho 752, at page 767, 168 P. 1078; Nampa & Meridian Irr. Dist. v. Petrie, 37 Idaho 45, at page 53, 223 P. 531; Stephenson v. Pioneer Irr. Dist., 49 Idaho 189, 288 P. 421, 69 A.L.R. 1225.

The underlying principle has likewise been the statutory rule since 1881. 1881 Session Laws, Sec. 16, p. 271, now Sec. 41-1104, I.C.A. ^[1] Such statute was, therefore, properly given as one of the questioned instructions in this case.

Other courts have likewise announced the same doctrine, some citing and quoting with approval Idaho cases. Shields v. Orr Extension Ditch Co., 23 Nev. 349, 47 P. 194; Howell v. Big Horn Basin Colonization Co., 14 Wyo. 14, 81 P. 785, at page 790, 1 L.R.A.,N.S., 596; Paolini v. Fresno Canal & Irrigation Co., 9 Cal.App. 1, 97 P. 1130; Stroup et al. v. Frank A. Hubbell Co., 27 N.M. 35, 192 P. 519, 32 L.R.A. 450; Kall v. Carruthers et al., 59 Cal.App. 555, 211 P. 43; Calvert et al. v. Anderson et al., 73 Mont. 551, 236 P. 847; Wilson et ux. v. Pacific Power & Light Co., 171 Wash. 232, 17 P.2d 846; Kaylor et al. v. Recla et ux., 160 Or. 254, 84 P.2d 495, at page 498.

Oregon, citing among others, McCarty v. Boise City Canal Company, supra, noted this doctrine was first announced by Hammurabi some 700 years before Moses, or over 2,000 years before the beginning of the Christian era. Mallett v. Taylor, 78 Or. 208, 152 P. 873, at page 875.

Appellant contends such an imposition of liability violates appellant's right to divert and appropriate water, guaranteed by Article XV, Sec. 3, of the Idaho Constitution. No reason is advanced nor authority cited which holds that such right to appropriate and divert water is any greater than the ordinary right to own and use property of any kind or why the appellant in the use of water should be freed from the responsibility and liability universally resting upon the owner and user of property; sic utere tuo ut alienum non laedas.

Respondent's witnesses testified in substance that prior to 1940, the land in question was not wet during the crop season and crops were grown and matured thereon, but in 1940 some seven acres were so saturated with water the crops did not mature; the same condition being increased and accentuated in 1941, resulting in loss on 40 acres; detailing the price and value of the crops, etc., and that a short time after water was turned into appellant's canal during those two and subsequent years, water could be seen leaking or seeping from the banks of the canal into the borrow pits on both sides of the road and into the...