Clear Creek Land & Ditch Company v. Kilkenny

• Decision Date: 06 June 1894
• Citation: 36 P. 819,5 Wyo. 38
• Parties: CLEAR CREEK LAND & DITCH COMPANY v. KILKENNY
• Court: Wyoming Supreme Court

36 P. 819

5 Wyo. 38

CLEAR CREEK LAND & DITCH COMPANY v. KILKENNY

Supreme Court of Wyoming

June 6, 1894

Commenced in District Court November 9, 1889.

ERROR to District Court for Johnson County, HON. JOHN W. BLAKE Judge.

Orrin C. Kilkenny brought this action to recover damages for the construction of an irrigating ditch, without his prior consent, across lands claimed to be owned by him, and for injury to his said lands on account of the seepage of water from the ditch. The prayer of the petition was: 1. For $ 1,450 damages. 2. Injunction against maintenance of the ditch as enlarged, or in lieu thereof, further damages. 3. Such further relief as plaintiff might be entitled to. There was considerable testimony on both sides respecting whether or not the seepage came from the ditch of defendant. There was another ditch in the neighborhood, and it was claimed on behalf of defendant that the damage by water was not caused by its ditch or the water flowing therein. The damage to the land was caused by the formation of alkali, alleged to result from the presence of an unusual and injurious quantity of water percolating through the soil. About November 1, 1883 the plaintiff entered the lands under the Desert Land act of the United States. He failed to conduct water upon the land and in the fall of 1886 he relinquished that entry and filed a homestead, making final proof in February, 1889. It was claimed by defendant that not later than the spring of 1883 a survey was made for its ditch, which ran across a corner of the land in question; that, in 1884, about the time the ditch was completed, the owners formed the corporation, which succeeded to the rights of the individuals constructing the ditch. Some of the work was claimed to have been done in 1883 prior to the inception of any right in Kilkenny; but it was not clear whether the work had reached his land at the time he went into possession. Defendant also claimed that the evidence did not establish that the water came from its ditch from any point on the plaintiff's land, even if it had its source anywhere in said ditch.

Judgment went for plaintiff. Defendant prosecuted error.

Judgment affirmed.

Carroll H. Parmelee, and Potter & Burke, for plaintiff in error.

The right of way for ditches across public lands is acknowledged by Act of Congress (U. S. Rev. S., sec. 2339). Kilkenny obtained title to the land under a homestead filing made in 1886, after the ditch was constructed across the land. Whatever right he had formerly obtained under the desert entry had been relinquished. The ditch was, therefore, lawfully built over public lands of the United States. If a settler is in possession the damages he is entitled to are only such as affect his possession, not for the land itself, under Sec. 2339 above. Settler means, also, one who is rightfully on the land. The enlargement of the ditch did not afford any right to damage for right of way. That had already been acquired. In this action the court had no authority to render judgment for any consequential injury. The action was for trespass in crossing the land. Such injuries as those caused by seapage after ditch is built are not proper elements of damage in such an action as this. (Lewis on Em. Domain, 154, 482, 565, 567, 574; Bailey v. Miller, 3 Hill, 531; Jones v. R. R. Co., 68 Ill. 380.) Where a ditch is lawfully constructed, no liability to respond in damages for seepage exists, except in case of negligence. (1 Addison Torts, 3; Cooley on Torts, pp. 80, 81; Losee v. Buchanan, 51 N.Y. 476; Marshall v. Welwood, 38 N.J.L. 339; Proctor v. Jennings, 6 Nev., 83; Campbell v. Bear River, etc., Co., 36 Cal. 679; Todd v. Cochell, 17 id., 97; Wolfe v. Water Co., 10 id., 541; Hoyt v. Hudson, 27 Wis. 656; Livingston v. Adams, 8 Cow., 175; Elster v. Springfield, 49 O. St., 82; Hazard Powder Co. v. Volger, 3 Wyo. 189.) Statutes which provide for similar liability in the absence of negligence have uniformly been held unconstitutional. (Zeigler v. R. R. Co., 58 Ala. 594; R. R. Co. v. Lackey, 78 Ill. 55; Cateril v. R. R. Co., 2 Idaho 540; Jensen v. R. R. Co., 6 Utah 253; Bielenberg v. R. R. Co., 8 Mont. 271; Ry. Co. v. Smalley, 1 Wash. St., 206; East Kingston v. Toole, 21 N.H. 57; R. R. Co. v. Batty, 6 Neb. 37; R. R. Co. v. Borgeons, 66 Miss. 3; see Sec. 535 Rev. Stat. as to liability of ditch companies.) Crossing the lands with the ditch was a lawful act even without compensation. It is absolutely impossible to determine from the testimony that the damage arose from the ditch in question. There is no basis in the evidence for any allowance for right of way. The amount of ground taken was not proven, nor its value, or what the damage was to the claimant's ownership. The damages awarded are excessive.

Charles H. Burritt, and Lacey & Van Devanter, for defendant in error.

The right of way for the ditch as originally constructed, would not inure to the benefit of any enlargement. (Darlington v. Painter, 7 Pa. 473; Washburn's Easements, p. 55, 155; LaFayette, Etc., v. Murdock, 68 Ind. 137.) The enlargement, and the operation of the ditch as so enlarged, was without right, and was a trespass, and therefore the ditch owner is responsible for all injuries to the land owner. Even if rightful, a foreign substance--water--was brought upon the right of way, by artificial means, likely to do mischief to others, and the ditch owner was bound to take care of it at his peril and see that it did not injure his neighbor. (Fletcher v. Rylands, L. R., 1 Exch., 265; Rylands v. Fletcher, 3 id., 352; Sylvester v. Jerome, 19 Colo. 128; Parker v. Larsen, 86 Cal. 236; Wilson v. New Bedford, 108 Mass. 261; Mears v. Dole, 135 id., 508; Parker v. R. R. Co., 3 Cush., 107; Pixley v. Clark, 35 N.Y. 520; Boynton v. Longley, 19 Nev. 69; Ogburn v. Connor, 46 Cal. 347; Cahill v. Eastman, 18 Minn. 324; Knapheide v. Eastman, 20 id., 478; R. S., Sec. 1318; Wadsworth v. Ry. Co., 18 Colo. 600.)

CONAWAY, JUSTICE. GROESBECK, C. J., and CLARK, J., concur.

OPINION

CONAWAY, JUSTICE.

Defendant in error brought his action as plaintiff in the court below to recover damages caused by plaintiff in error in constructing, enlarging and maintaining an irrigating ditch across land of defendant in error. His alleged cause of action sufficiently appears from the following allegations taken from his petition:

"That on or about the 10th day of May, A. D. 1884, the defendant constructed or caused to be constructed a certain irrigating ditch or canal through the lands of plaintiff hereinbefore described, and without the consent of said plaintiff, which ditch or canal is about the dimensions as follows, to wit: width on the bottom six feet, depth two feet. That afterwards and on or about the 12th day of May, A. D. 1887, the said defendant while the said plaintiff was the owner of and in possession of said lands and premises, without his consent and contrary to his instructions and against his protest, entered upon the lands of this plaintiff and enlarged the said ditch making the said ditch 7 feet on the bottom, 12 feet wide on the top and thirty inches deep and enlarging it to its present carrying capacity, which is nearly double its former capacity, and ever since and now has maintained said irrigating ditch across the land of said plaintiff hereinbefore described and without having any authority or license from plaintiff so to do."

The statement of damages appears from the following language of the petition:

"That the said plaintiff has already suffered damage by reason of the construction and enlargement of said ditch to the amount of two hundred dollars in the loss of crops, and his property has further been depreciated to the amount of $ 1,250 thereby."

The defendant (Plaintiff in error) answered denying its liability, and there was a trial to the court, a jury being waived.

The trial court finds:

"That the said plaintiff is entitled upon the pleadings and the proof herein to $...