Big Goose and Beaver Ditch Company v. Morrow

• Decision Date: 04 December 1899
• Citation: 59 P. 159,8 Wyo. 537
• Parties: BIG GOOSE AND BEAVER DITCH COMPANY v. MORROW
• Court: Wyoming Supreme Court

59 P. 159

8 Wyo. 537

BIG GOOSE AND BEAVER DITCH COMPANY v. MORROW

Supreme Court of Wyoming

December 4, 1899

ERROR to the District Court, Sheridan County, HON. JOSEPH L STOTTS, Judge.

Affirmed.

E. E Lonabaugh, for plaintiff in error.

There being no statutory liability, the ditch owner is liable only at the common law, if at all. He who is prior in time has the better right. Where one locates under the line of a ditch the rule of coming to a nuisance applies. (Tenny v. Ditch Co., 7 Cal. 335.) A ravine may be used as a ditch. (37 Cal. 263.) As the company was operating its ditch in the usual way no negligence can be imputed to it. But, if negligent, such negligence was not the proximate cause of the injury. Two of the animals were lost in a storm, and that was the proximate cause. (Canal Co. v. Dowell, 30 P. 68; Coley v. City, 28 S.E. 482; Texas R. Co. v. Black, 44 S.W. 673; Pyle v. Clark, 25 C. C. A., 190; Broscoe v. Ry. Co., 28 S.E. 638; Akridge v. Ry. Co., 16 id., 81; Peters v. Bowman, 47 P. 113 (Cal.); Butz v. Cavanaugh, 38 S.W. 1104.)

When the excavation is not near a public highway, there is not negligence per se. (Goor v. Middlestadt, 71 N.W. 656; Dobbins v. Ry. Co., 41 S.W. 62.) A mere failure to guard against a certain result is not actionable negligence, unless under all the circumstances, it might have been reasonably foreseen by a man of ordinary intelligence and prudence. (Ry. Co. v. McEwen, 22 So. 675.) The ground of liability is negligence, and the test is the ordinary usage of business. (Beck v. Hood, 39 A. 842.) The owner of lands is under no obligation to keep them safe for the use of a person who comes upon them not by invitation of the owner. (Fitzpatrick v. Mfg. Co., 39 A. 675.) The judgment is void as to costs. (Mosher v. Com'rs, 2 Wyo. 462.)

Appelget & Mullen, for defendant in error.

The statute fixing certain duties of ditch owners is broad enough to include the injuries sued for in this action. (R. S., Secs. 1323, 1318; Wis. C. R. Co. v. Price Co., 133 U.S. 496; Cornelius v. Kessel, 128 id., 456.)

One must so use his property as not to injure his neighbor. An actionable nuisance may be caused by an act lawful in itself when the nuisance is a consequence of that act. (Canal Co. v. Ter., 2 Zab., 243; R. R. Co. v. Franz, 2 West. (O.), 359.)

Anything constructed on a person's premises which, of itself or by its intended use, directly injures a neighbor in the proper use and enjoyment of his property is a nuisance. (Stone v. Bumpus, 40 Cal. 428; Knox v. Mayor, 55 Barb. 404; Grady v. Walsner, 46 Ala. 381; Hackney v. State, 8 Ind. 494; Fresno v. Fresno, 32 P. 943; Susquehanna, etc., v. Malone, 9 L. R. A., 738.) It is not a question of negligence. (Hay v. Cahoes Co., 2 N.Y. 159; McKeon v. See, 51 id., 309; Hegg v. Licht, 80 id., 579; Gas Co. v. Murphy, 39 Pa. 257; Cleveland v. Citizens, etc., 20 N.J. Eq. 201; Wood Nuisance, 2d ed., 497, 583; Coggswell v. N.Y. 103 N.Y. 10; 9 Paige, 575; 19 Mo. App., 75; 26 L. R. A., 693.)

The ditch owner is liable for the injury. (14 L. R. A., 329; 9 id., 738; 26 id., 686; 46 Mich. 542; 5 Ind.App. 22; 62 Iowa 96; 46 Ark. 207; 16 Ind. 314.) Even trespassers have rights which can not be ignored. (22 Kan. 686; 57 Tex. 123; 77 Ga. 102; 25 S. C., 24; 91 Cal. 296.)

The judgment is not void because of the blank left in the entry for the amount of costs. (9 O., 155; 70 Iowa 424; 3 Cranch, 92.) The court does not fix the amount of costs. They are computed by the clerk, and may be inserted by him at any time.

POTTER, CHIEF JUSTICE. CORN J., and Knight J., concur.

OPINION

POTTER, CHIEF JUSTICE.

Plaintiff in error is a ditch corporation engaged in diverting water, and conducting it upon or to the neighborhood of lands of its stockholders for irrigation. For the purpose of conveying the water across certain lands of the defendant in error, it employed and adopted, as part of its ditch, a natural depression, draw, or gulch situated on said lands, through which it was unnecessary to resort to excavation, although, as we understand the testimony, the defendant in error, who was a stockholder in the company, had plowed for his own advantage, or caused to be plowed, a few furrows to confine the water, and prevent its spreading, as it threatened to do, over more land in width than was desirable. The water is turned loose into said draw or gulch at a point near the place where it enters the lands of defendant in error, and follows it for a distance of fourteen hundred feet, where it is recaptured in a ditch constructed for that purpose. It is carried in that ditch upon said lands until another draw or gulch is reached, where it is again turned loose, and discharged into said second draw, down which it flows until it passes off from the lands of defendant in error. In some instances the witnesses testifying by reference to a certain map before them, and which is in the record, pointed out or indicated the locations and directions, accompanying their signs by such expressions as "here" and "there." Their testimony was evidently made clear to the counsel and the trial court; but the mere words of the record convey but little intelligence of the precise localities which they referred to or described, for unfortunately, their signs and finger indications are not preserved in the record, and they are left unexplained. We believe, however, that the facts herein stated as to the course and character of the ditch across the lands in question are fairly to be gathered from the intelligible part of the evidence.

The fall down and along the fourteen hundred feet where the water is first turned loose upon the lands in question is about sixty feet, ranging from three feet and eight inches to six feet and eleven inches to each one hundred feet. Through the second draw or gulch we understand the fall to be greater than that.

Where the water is turned loose as aforesaid, no effort was made to confine the water or direct its flow, except as already stated, by the plowing of a few furrows to prevent its spreading. No contrivance was provided or employed to reduce the natural tendency of the water to cut into and wash away the soil. It did, in fact, by constant washing of the soil, cut deep channels for itself along said ravines or gulches. The map in the record indicates that through the first fourteen hundred feet where the water was allowed to run without artificial restraint, the washing was from four to eight feet, and through the second ravine, from six to twenty feet; but whether the figures are intended to disclose the width or depth of the washing or cutting, is not manifest. The defendant in error, however, testified as follows concerning the cutting along the said fourteen hundred feet draw:

"Well, there was a cut right across that forty (acres) fourteen hundred feet, that was from six to ten feet deep." Q. "And how wide?" A. "Why, it was the most of it from or more than four or five feet wide." Q. "And how is it at the bottom of the ditch?" A. "There is about two hundred feet in the middle of it from twenty-five to thirty feet wide caved in in the center along about the middle of this ditch, washed out. From there up to the northwest line about probably half the distance, it is about ten feet deep, and narrow so that a man can jump across it in some places."

Another witness, Mr. Robinson, testified that the wash, in its deepest place, is about thirty feet deep and varies in width from twenty to thirty feet along a distance of about ten rods; but it seems that he was referring to the second place where the water was turned loose upon the lands in question, and that his figures above given did not apply to the fourteen hundred feet place described by the defendant in error.

The excavations or washouts thus caused by the action of the water were not separated from the rest of the field by a fence or other inclosure, nor were any barriers erected to prevent animals from approaching and falling into them. The lands of defendant in error were inclosed and used by him as a winter pasture for some of his live stock; and certain of his horses and cattle were killed by falling into the excavation made as aforesaid in that portion of the conduit referred to as the fourteen hundred feet strip, or the draw where the waters are first discharged upon the lands.

This action was instituted by the defendant in error to recover the damages sustained by him by reason of the injury to his lands resulting from the washing away of the soil, and the loss of said horses and cattle.

The cause was tried to the court without a jury, and the findings were against the right of recovery for the alleged damage to the lands, but sustained the claim made, in part at least, for the loss of the live stock, and judgment was rendered in favor of defendant in error for the sum of one hundred and thirty dollars. The court found that the plaintiff in error had the right to maintain its ditch over and across the said lands, and that such right had accrued prior to the occupation of and entry of the lands by defendant in error; said lands anterior to such occupation and entry having been public lands of the United States. The ditch company prosecuted error and complains particularly of the third finding, which was as follows:

"The court further finds that the defendant has maintained its said ditch across the lands of the plaintiff, and that, at the time of the commencement of this action, the water flowing in defendant's ditch had so cut the lands of plaintiff as to render the possession and enjoyment of the plaintiff dangerous to the stock of plaintiff, that defendant negligently left the said ditch unprotected, so that the stock of plaintiff, described in the petition, fell into said ditch and were...