Arave v. Idaho Canal Co.

• Decision Date: 03 December 1896
• Citation: 46 P. 1024,5 Idaho 68
• Parties: ARAVE v. IDAHO CANAL COMPANY
• Court: Idaho Supreme Court

46 P. 1024

5 Idaho 68

ARAVE v. IDAHO CANAL COMPANY

Supreme Court of Idaho

December 3, 1896

CONSTRUCTION OF CANAL OVER ANOTHER'S LAND-LIABLE FOR DAMAGES.-One erecting or maintaining a canal along the line of another's land is liable for any damage resulting from a want of proper care in the management of the same, or for want of proper care in its construction.

(Syllabus by the court.)

APPEAL from District Court, Bingham County.

Affirmed, with costs.

Reeves & Terrell, for Appellant.

This action was commenced by respondent seeking to have the embankments of a certain canal owned and operated by the appellant declared to be a nuisance because it obstructed the flow of surface water, and caused the same to be dammed, and to form a pool about his premises; and to have such nuisance abated and for his damages resulting from the flooding of his premises, caused by such embankment. If appellant raised an embankment upon its right of way which prevented the surface water, falling and running upon the land of respondent, from flowing off his said land, and caused it to accumulate thereon, gave the respondent no cause of action against the appellant, unless it was found that appellant had obstructed a natural watercourse. (Chicago K. & N. Ry. Co. v Steck, 51 Kan. 737, 33 P. 601; Kansas City E. B. Co v. Riley, 33 Kan. 374, 6 P. 581; Morrisy v. Chicago B. & Q. Ry., 38 Neb. 406, 56 N.W. 946; Gibbs v Williams, 25 Kan. 214, 37 Am. Rep. 241; Yazoo & M. V. Ry. Co. v. Davis, 73 Miss. 678, 55 Am. St. Rep. 562, 19 So. 487.)

F. S. Dietrich, for Respondent.

In constructing its canal appellant practically erected a dam reaching from the foothills on the south to the higher land north of Sand creek, with no outlet or passage, except one wholly inadequate for the natural flow of Sand creek, in the channel of that stream. The flow of 1894 was unusual; nothing quite as great since 1887; almost as great in 1893. Dammed in, as plaintiff was, with a little water coming in upon him from every direction, slightly unusual weather conditions would produce extraordinary depth of water near his house. But the defendant made absolutely no provision. Economy of construction forbade. Had provision been made for the commonest flow of water, thus relieving, plaintiff could have protected against great damage. (Ohio etc. R. R. Co. v. Ramey, 139 Ill. 9, 28 N.E. 1087, 32 Am. St. Rep. 176, and note; De Baker v. Southern Cal. Ry. Co., 106 Cal. 257, 39 P. 610, 46 Am. St. Rep. 237, last syllabus; also instruction No. 13, p. 239; Learned v. Castle, 78 Cal. 454, 18 P. 872, 21 P. 11; Kansas City v. Slangstrom, 53 Kan. 431, 36 P. 708; Montgomery v. Locke (Cal.), 11 P. 874; Richardson v. Kier, 34 Cal. 63, 91 Am. Dec. 681, 37 Cal. 263; McCarty v. Boise City Canal Co., 2 Idaho 245, 10 P. 623; Earl v. De Hart, 12 N. J. Eq. 280, 72 Am. Dec. 395; Wharton v. Stevens, 84 Iowa 107, 35 Am. St. Rep. 296; Black's Pomeroy on Water Rights, sec. 66, and notes.)

HUSTON, J. Morgan, C. J., and Sullivan, J., concur.

OPINION

HUSTON, J.

The plaintiff in the spring of 1894 was, and for many years prior thereto had been, the owner and in the possession and occupancy of the northwest quarter of section 29, township 1 north, of range 38 east, of the Boise meridian, in the county of Bingham, state of Idaho and had made valuable improvements thereon in the way of houses, barns, outhouses, fences, etc and was at the date last mentioned using and occupying said premises as a home for himself and family. About the year 1890, the defendant corporation constructed a large canal, running along the westerly side of the plaintiff's said homestead, and adjacent thereto, and, in the construction of said canal, built and erected high embankments along the line of and as a part of, said canal, and put a flume across and obstructed the channel of Sand creek, a natural watercourse running along the line of plaintiff's said homestead. Plaintiff's said land slopes in the direction of said canal and embankments, and the water from rains and the melting snows upon plaintiff's said land and the foothills lying contiguous thereto all flows across plaintiff's said land toward...