Calvert v. Anderson
| Decision Date | 22 June 1925 |
| Docket Number | 5719. |
| Citation | 236 P. 847,73 Mont. 551 |
| Parties | CALVERT et al. v. ANDERSON et al. |
| Court | Montana Supreme Court |
Appeal from District Court, Deer Lodge County; George B. Winston Judge.
Suit by E. E. Calvert and others against John Anderson and others. From a judgment of dismissal, plaintiffs appeal. Reversed and remanded, with directions.
T. P Stewart, of Anaconda, and S. P. Wilson, of Deer Dodge, for appellants.
Charles E. Avery, of Anaconda, for respondents.
By this action plaintiffs seek to recover damages for injury to their property, caused by the seepage of water from an irrigating ditch owned and operated by the defendants, and to secure an injunction restraining the defendants from maintaining and using the ditch in the manner described. The trial court sustained a general demurrer to the complaint, and plaintiffs, electing to stand by their pleading, suffered a judgment of dismissal to be entered and appealed therefrom.
The only question presented is: Does the complaint state a cause of action upon any theory? For, if it does, it is proof against a general demurrer. Donovan v. McDevitt, 36 Mont. 61, 92 P. 49; Baker v. Butte Water Co., 40 Mont. 583, 108 P. 819, 135 Am. St. Rep. 642; Stadler v City of Helena, 46 Mont. 128, 127 P. 454; Keeler Bros. v. School District, 62 Mont. 356, 205 P. 217; Grover v. Hines, 66 Mont. 230, 213 P. 250; Outlook Farmers' Elevator Co. v. American Surety Co., 70 Mont. 8, 223 P. 905. By a process of elimination the question may be reduced to very simple form.
It is the rule in this state that the owner of an irrigating ditch is not an insurer thereof, and is liable only for damages caused by his willful acts, or by his negligence in constructing, maintaining, or using his ditch. Fleming v. Lockwood, 36 Mont. 384, 92 P. 962, 14 L. R. A. (N. S.) 628, 122 Am. Rep. 375, 13 Ann. Cas. 263; Jeffers v. Montana Power Co., 68 Mont. 114, 217 P. 652. It is not contended that the defendants herein acted willfully, and they are not charged with negligence in the construction of their ditch originally; so that our inquiry may be narrowed to the simple question: Does the complaint charge negligence in the maintenance or use of the defendants' ditch?
From the very lengthy pleading the following statements material to our present inquiry may be gathered: For many years the plaintiffs have been in possession of a ranch in Deer Lodge county which is arid in character, but with artificial irrigation produced profitable agricultural crops. In 1901 they made an appropriation of waters of Fish Trap creek, and by means of a ditch then constructed by them conveyed the waters to and upon their lands in quantities sufficient to irrigate the same, and this ditch was kept in repair and served the plaintiffs' needs until it was destroyed. The lands of the defendants lie in the same general neighborhood as the plaintiffs' lands, and they, too, require irrigation for their successful cultivation. In 1917 defendants appropriated water from Fish Trap creek and commenced the construction of a ditch, which was completed in 1919. Defendants' ditch is referred to in the record as the "Grupe ditch."
Both ditches take water from the southern bank of the stream, and for a considerable distance are parallel and only about 100 feet apart. The defendants' ditch taps the creek at a point above the head of plaintiffs' ditch, and for some 1,500 feet is at an elevation higher than the plaintiffs' ditch. Defendants constructed their ditch along this stretch of 1,500 feet through loose dirt, sand, gravel, and other porous formations, without employing any means to prevent the water escaping, with the result that much of the water turned into the ditch seeped from it and saturated the ground between the two ditches, causing earth, boulders, and other debris to slip and slide into plaintiff's ditch. Thereupon plaintiffs notified defendants of the seepage, and the damage which would result from maintaining and using the ditch in its then condition; but in disregard of their duty defendants in 1922 enlarged their ditch to double its former capacity and continued to try to flow water through it to the full extent of its enlarged capacity, with full knowledge of the facts, and without making any effort by fluming, piping, or otherwise to prevent the seepage.
In June, 1923, in the midst of the irrigating season, and when plaintiffs were greatly in need of the water, the ground between the two ditches became so saturated with the water seeping from defendants' ditch as to cause trees, rocks, and earth to slip and slide from their natural positions, and to fall into and fill plaintiffs' ditch, and break and destroy the banks, for a great distance, and defendants continued so to use their ditch during the season, and to permit the water to escape therefrom, and saturate the ground above and about plaintiffs' ditch; that plaintiffs were unable to repair it, and their crops were burned and destroyed, to their damage, etc. It is then alleged:
"That the acts and conduct of defendants in flowing water through said ditch in the irrigation season of 1922 and in the irrigation season of 1923,...
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