Butala v. Union Electric Co.
| Decision Date | 10 June 1924 |
| Docket Number | 5448. |
| Citation | 226 P. 899,70 Mont. 580 |
| Parties | BUTALA v. UNION ELECTRIC CO. ET AL. |
| Court | Montana Supreme Court |
Appeal from District Court, Beaverhead County; Jos. C. Smith, Judge.
Action by John Butala against the Union Electric Company and another. From judgment for plaintiff as to the named defendant, it appeals. Reversed and remanded, with instructions.
E. J Callaway, of Long Beach, Cal., and J. E. Kelly, of Dillon for appellant.
W. J Cushing and Norris, Hurd & Collins, all of Dillon, for respondent.
Plaintiff brought this action to recover damages from the defendants Union Electric Company and Lovell Livestock Company on account of the destruction of crops growing upon his land and injuries to the land itself. In his complaint he alleged that the defendants maintained a dam and reservoir for impounding the waters of certain springs arising in the mountains southward from his land and for the purpose of conducting the water away from the reservoir had built a ditch below the dam and above his lands which was so located that, when it was permitted to overflow, the waters thereof were diverted to and upon his lands; that during the winter months of 1920-21 and 1921-22 the defendants impounded water in this reservoir and for long intervals of time prevented any of it from flowing into the ditch, so that it became partly filled with snow and ice and then from time to time while the ditch was in that condition, and with full knowledge thereof and of the consequences which would follow, released from the reservoir and turned into the ditch large quantities of water which it was unable to carry; that the water overflowed the ditch and spread over the plaintiff's lands in freezing weather and formed ice thereon, by reason of which his crops were destroyed and the land greatly depreciated in value; that plaintiff protested against such acts without avail; that the defendants threatened to and would, unless restrained, continue to use the water in this manner and to flood his lands from year to year, thereby destroying his crops and rendering his land valueless and subject him to a multiplicity of suits for damages. The prayer is for damages and for an injunction to restrain the defendants from permitting the water to flow over his land.
Since the action was dismissed as to the defendant Lovell Livestock Company, it is not necessary to consider the matters set forth in its answer.
The defendant Union Electric Company filed a separate answer denying plaintiff's damages, and set out that it was engaged in the lawful business of generating electricity for the city of Dillon and other commercial purposes, and in connection therewith owned and operated a power plant situated about 3,000 feet from a certain spring known as the Lovell Warm Spring, and as a part of its generating system maintained the reservoir mentioned in the complaint which was located in the vicinity of said Warm Spring and above its power plant; that the water was conducted from the reservoir down to its plant through a pipe, then over the power wheel, and discharged into what is designated as the Sturgis ditch, which had been theretofore constructed for the purpose of conducting said discharged waters down to the Beaverhead river. It is also alleged that the defendant Lovell Livestock Company is solely responsible for the care, dominion over, control, and use of said ditch, and the water conducted thereby, after discharge of the waters from defendant's generating plant; and that this defendant is not in any way liable or responsible for the use, maintenance, control, or dominion of said ditch, or the waters flowing therein. The plaintiff did not file a reply to this answer.
The case was tried to a jury. The plaintiff contended at the trial, and also contends in this court, that the action is based upon a plain trespass upon his lands, and that the element of negligence is not involved. This theory was adopted by the trial court in all rulings upon the admissibility of evidence, as well as in the instructions given to the jury.
After both plaintiff and defendant had closed, upon motion of plaintiff, the action was dismissed as to the defendant Lovell Livestock Company. Thereupon the defendant Union Electric Company moved the court to direct the jury to return a verdict in its favor upon the ground that there was not sufficient evidence to go to the jury, and particularly in that there was no showing that the acts complained of were negligently committed; and for the further reason that it failed to show that this defendant wantonly, willfully knowingly, or maliciously permitted the water to flow from the Sturgis ditch upon the premises of the plaintiff,...
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