Coulsen v. Aberdeen-Springfield Canal Co.

Citation277 P. 542,47 Idaho 619
Decision Date10 May 1929
Docket Number4958
PartiesE. B. COULSEN, Respondent, v. ABERDEEN-SPRINGFIELD CANAL COMPANY, a Corporation, Appellant
CourtUnited States State Supreme Court of Idaho

EASEMENTS-CHARACTER OF TITLE CREATED-RIGHT OF WAY FOR DITCH-DUTY TO MAINTAIN AND GUARD-SECONDARY EASEMENT-LIMITATIONS OF-SUBSTANTIAL ALTERATIONS-NEGLIGENCE-CONTRIBUTORY NEGLIGENCE-CARE REQUIRED IN USE OF PROPERTY.

1. Use to which right of way is devoted, or for which it was created, determines character of title with which holder is invested, and no greater title or right to possession passes under general grant than reasonably necessary to enable grantee to adequately and conveniently make intended use of way.

2. Under Act Cong. March 3, 1891, secs. 18-21 (43 U.S. C. A secs. 946-949), irrigation company did not have title to strip of land of 100 feet in width in addition to width of its spillway, but only had easement thereon, and its rights are governed by law relating to that subject.

3. Where grant under which irrigation company claimed was indefinite as to width and location of canal, as well as to character of conduit to be constructed, practical construction placed on grant by parties thereto fixed limitation of burden imposed in accordance with Act Cong March 3, 1891, sec. 21 (43 U.S. C. A., sec. 949), limiting grant to extent that no greater burden be imposed than necessary.

4. The initial use measures rights of irrigation company under grant of right of way indefinite as to width and location.

5. Owner of land subject to easement for right of way of irrigation company took estate subject to original easement and implied secondary easements, and, though irrigation company had right to exercise secondary easements accompanying right it held, substantial alterations or changes in manner of use could not be made, and any increase in burden imposed on land amounted to trespass.

6. Duty of maintaining easement or right of way for irrigation canal was upon irrigation company and not upon owner of land subject to easement therefor.

7. Failure of irrigation company to repair or guard right of way, after soil had been carried away so as to form gulch constituted actionable negligence.

8. Irrigation company negligently failing to repair or guard right of way, after considerable soil had been washed out so as to form a gulch, was liable for injury to bull falling into ditch while grazing on right of way.

9. In action against irrigation company to recover value of pure-bred bull which died as result of injury sustained by him in falling into waste ditch or spillway, evidence relative to owner's negligence in caring for water delivered to him held sufficient to authorize submission of question to jury.

10. In order to constitute "contributory negligence" there must be a breach of duty imposed by law on persons to protect themselves from injury from negligent act of another, and such breach must concur with negligence of other producing injury complained of.

11. Where danger is not so obvious as to make it morally certain that injury will follow ordinary use of land, owner has right to make any use of it he desires to make, and no accusation of contributory negligence can be directed against him, the only limitation being that he must not so use his own land as to wrongfully injure his neighbor.

12. Land owner permitting pure-bred bull to graze on right of way along irrigation ditch was not guilty of contributory negligence sufficient to preclude recovery by reason of death of bull from injury sustained in falling into waste ditch or spillway.

APPEAL from the District Court of the Sixth Judicial District, for Bingham County. Hon. Robert M. Terrell, Judge.

Action to recover damages. Judgment for plaintiff. Appeal from order denying motion for new trial. Affirmed.

Order affirmed, with costs.

Maurice M. Myers and W. C. Loofbourrow, for Appellant.

"For aught that the complaint shows the plaintiff may have turned his stock upon the land after the ditch had become dangerous and with full knowledge of its condition. The width of the right of way of the ditch is not stated, but no complaint is made that its banks after its enlargement were outside of its right of way, so that the plaintiff's privilege of pasture upon the adjoining land gave him no license upon the land occupied by the ditch. If he knew the condition of the ditch when he turned his stock upon the land, and, as the complaint says nothing to the contrary, we must presume that he did, he took upon himself the risk of his cattle straying into the ditch and being lost." (Beinhorn v. Griswold, 27 Mont. 79, 94 Am. St. 818, 69 P. 557, 59 L. R. A. 771; Peek v. Western Union Tel. Co., 159 Mo.App. 148, 140 S.W. 638.)

"In an action to recover for personal injuries where contributory negligence is plead as a defense, the plaintiff cannot recover when it is proven by the evidence that the negligence of the plaintiff was a proximate cause of the injury, notwithstanding the fact that the evidence may also show negligence on the part of the defendant." (Rippetoe v. Feely, 20 Idaho 619, 119 P. 465; Pilmer v. Boise Traction Co., 14 Idaho 327, 125 Am. St. 161, 94 P. 432, 15 L. R. A., N. S., 254; Wheeler v. Oregon R. R. etc. Co., 16 Idaho 375, 102 P. 347; Goure v. Storey, 17 Idaho 352, 105 P. 794; 29 Cyc. 505.)

The appellant owed no duty to fence. (Strong v. Brown, 26 Idaho 1, Ann. Cas. 1916E, 482, 140 P. 773, 52 L. R. A., N. S., 140; Gould v. Reed, 34 Idaho 618, 203 P. 284; Wilt v. Coughlin, 176 Mo.App. 275, 161 S.W. 888; Gillespie v. Wheatland Ind. Co., 22 Wyo. 331, Ann. Cas. 1917A, 387, 140 P. 832, 52 L. R. A., N. S., 133.)

Even a railway, which maintains on its right of way the most dangerous agency possible to stock, is not required to fence except at certain places and as required by statute. (C. S., sec. 4814.)

G. F. Hansbrough, for Respondent.

A ditch company with the right to maintain its ditch over the lands of another, is liable to the land owner for injury to stock which falls into a dangerous washout, because of the company's failure to guard it, though the right to maintain the ditch over the land was obtained while it was public land. (Big Goose & Beaver Ditch Co. v. Morrow, 8 Wyo. 537, 70 Am. St. 955, 59 P. 159, Richardson v. Kier, 34 Cal. 63, 91 Am. Dec. 681; Joseph v. Ager, 108 Cal. 517, 41 P. 422; Sabine etc. R. R. Co. v. Johnson, 65 Tex. 389; Arave v. Idaho Canal Co., 5 Idaho 68, 46 P. 1024.)

Irrigation ditch canal companies are required to use reasonable skill, judgment and care in the construction of their ditches for irrigation purposes, and in their maintenance and repair. ( Lisonbee v. Monroe Irr. Co., 18 Utah 343, 72 Am. St. 784, 54 P. 1009; King v. Miles City etc. Ditch Co., 16 Mont. 463, 50 Am. St. 506, 41 P. 431.)

The law requires of every man that he shall so use his own property as not to unnecessarily injure that of his neighbor. ( Arave v. Idaho Canal Co., 5 Idaho 68, 46 P. 1024; Ulrick v. Dakota Loan etc. Co., 2 S.D. 285, 49 N.W. 1054; Richardson v. Kier, supra.)

A man's right to make free use of his own property is not to be curtailed by the fear that his neighbor will make a negligent use of his. He is not required to spend time, money and labor endeavoring to make his property proof against another's careless conduct. Hence, failure to anticipate defendant's negligence does not amount to contributory negligence. (1 Thompson on Negligence, p. 168; 29 Cyc. 516, 517; Yik Hon v. Spring Valley Water Works, 65 Cal. 619, 4 P. 666.)

BAKER, District Judge. Givens, T. Bailey Lee, Wm. E. Lee, and Varian, JJ., concur.

OPINION

BAKER, District Judge.

The plaintiff seeks to recover the value of a pure-bred bull which died as a result of injuries sustained by him in falling into a waste ditch or spillway controlled by the defendant. Plaintiff alleged the defendant was negligent in failing to control the flow of water in the ditch so as to prevent the washing away of the land and in failing to fence for the protection of plaintiff's livestock grazing upon his land through which the ditch runs. Upon the first trial a judgment of nonsuit was entered which was reversed on plaintiff's appeal (39 Idaho 320, 227 P. 29).

At the second trial application was made by the defendant to amend its answer by denying the absolute ownership in the plaintiff of the land described in his complaint and by alleging that his interest and ownership were subject to the prior right of way of the defendant for its ditch and that the defendant was a Carey Act operating company. Upon the admissions of the plaintiff, several times repeated and appearing in the record at his request, that defendant owned the ditch or spillway and had all the rights of ownership it could, as the owner of an irrigation system, acquire under the laws of the United States, the application to amend was withdrawn. A certified copy of the articles of incorporation of the defendant, showing it to be a Carey Act operating company, was admitted in evidence.

In addition to the facts stated in the opinion on the former appeal, it is established that the construction company built the spillway or waste ditch over the land while it was unappropriated public land of the United States; that the works consisted of a wooden flume from the discharge gate in the lateral to the bottom land below the bench; that at various times the flume had washed out and that much soil had been carried away and a gulch of considerable dimensions had been formed. The last wash occurred in July or August, 1920 and it was into this portion of the gulch the bull fell. The defendant company, between the date of the last erosion and the date of the injury to the bull, had substituted a pipe for the wooden flume but had not filled the gulch or...

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    • January 28, 1950
    ...26 Idaho 1, 140 P. 773, 52 L.R.A.,N.S., 140, Ann.Cas.1916E, 482; Gould v. Reed, 34 Idaho 618, 203 P. 284; and Coulsen v. Aberdeen-Springfield Canal Co., 47 Idaho 619, 277 P. 542. These cases also demonstrate that the rule does not apply here for the reason Moreover, this court has always re......
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