Emison v. Owyhee Ditch Co.

• Decision Date: 13 August 1900
• Citation: 62 P. 13,37 Or. 577
• Parties: EMISON v. OWYHEE DITCH CO.
• Court: Oregon Supreme Court

62 P. 13

37 Or. 577

EMISON v. OWYHEE DITCH CO.

Supreme Court of Oregon

August 13, 1900

Appeal from circuit court, Malheur county; M.D. Clifford, Judge.

Action by Mary N. Emison against the Owyhee Ditch Company. From a judgment in favor of defendant, plaintiff appeals. Reversed.

This is an action to recover damages for the loss of crops, alleged to have been caused by the defendant's negligence in permitting water from its ditch to overflow plaintiff's lands. It is alleged in the complaint that the defendant owns and operates a ditch in Malheur county, Or., and is engaged in furnishing water to its customers for irrigation; that the plaintiff is the owner in fee of certain lands in said county, across the south end of which the defendant maintains and operates a waste way from its main ditch to conduct the surplus water therefrom; that in 1897, 1898, and 1899 the defendant so negligently constructed, maintained, and operated said waste way that the water escaped therefrom and overflowed plaintiff's lands, to her damage in the sum of $1,075. The answer, having denied the material allegations of the complaint, averred "that heretofore, in the year 1896, the plaintiff, the K.S.D. Fruit-Land Company, the Nevada Ditch Company, and this defendant entered into a joint agreement, contract, and undertaking for the construction of a waste way or waste ditch from the Owyhee ditch, on the section line between Clark and the K.S.D. Fruit-Land Company and the lands of the plaintiff, east to Snake River slough that in pursuance of said agreement, contract, and undertaking, the said parties, jointly operating together and for their mutual benefit and advantage, did proceed with the construction of said waste way or waste ditch as aforesaid, and did so build and construct the waste way or waste ditch mentioned and referred to in plaintiff's complaint; that, if any damage has been occasioned to any of the lands or crops of the plaintiff, it has so been caused not by the acts, negligence, or conduct of the defendant, but by either the Nevada Ditch Company, the K.S.D. Fruit-Land Company, by the plaintiff herself, or by all of said parties." The reply having put in issue the allegations of new matter in the answer, a trial was had, resulting in a judgment for the defendant, and plaintiff appeals.

William H. Packwood, Jr., John L. Rand, and R.G. Wheeler, for appellant.

Lionel R. Webster and Wm. Miller, for respondent.

MOORE J. (after stating the facts).

An exception having been taken to the following instruction, it is contended by plaintiff's counsel that the court erred in giving it, to wit: "There is one other matter gentlemen of the jury, that I desire to call your attention to; and that is, there is one place in this answer where the defendant alleges that, if any damage was occasioned to the lands of plaintiff, it was occasioned by the surplus water used by the plaintiff in irrigating. In other words, that is in the nature of contributory negligence,--that the plaintiff herself contributed to the damage. And, in that respect, I charge you that if the plaintiff, by carelessness or negligence in the management or care of her property, caused or contributed to her own damage, if she suffered any damage, she cannot recover any such damages in this action, and I instruct you that you should find for the defendant; that is, if any damages have been occasioned by her [the plaintiff] contributing to the damage herself." The testimony produced by plaintiff tends to show that she has, near the southern boundary of her farm, about 15 acres of low land which in 1897, 1898, and 1899 was covered for a short time each year with water from the defendant's waste way to a depth of from six inches to two feet, destroying the crop thereon, and producing the injury of which she complains. She irrigates her crops by flooding the higher land with water, which is permitted to flow down upon and moisten the low tract, towards which about 40 acres of her farm gradually slopes. Prior to the construction of the defendant's waste way in 1897, good crops of alfalfa had been raised on this low land, upon a small part of which the water had...