Fleming v. Lockwood
| Decision Date | 28 December 1907 |
| Citation | 92 P. 962,36 Mont. 384 |
| Parties | FLEMING v. LOCKWOOD. |
| Court | Montana Supreme Court |
Appeal from District Court, Powell County; Geo. B. Winston, Judge.
Action by Johanna Fleming, executrix of John Fleming, deceased against W. S. Lockwood. Judgment for defendant. Plaintiff appeals. Affirmed.
Rodgers & Rodgers and W. H. Trippet, for appellant.
Scharnikow & Paul and Walsh & Nolan, for respondent.
This action was commenced in the district court of Powell county by Johanna Fleming, guardian of John Fleming, an incompetent person, to recover damages from W. S. Lockwood, and to secure an injunction restraining the defendant from maintaining and operating a certain irrigating ditch.
In substance, the complaint charges that the ditch was constructed over Fleming's land, wrongfully and without his consent; that it was so carelessly and negligently constructed and managed by Lockwood that the water running therein seeped through the bottom and north side of the ditch to and upon meadow land belonging to Fleming, and lying north of the line of the ditch; and that such seepage water arose and came out on the said meadow land and overflowed it, made it wet and marshy, and destroyed the hay growing on said land, and rendered the land worthless, to plaintiff's damage in the sum of $12,500. The second cause of action recites the same facts, and further alleges that the defendant threatens to continue to use and maintain the ditch as set forth, to the irreparable injury of the plaintiff and John Fleming. The answer denies any wrongful entry upon the land of Fleming, and alleges that the ditch was constructed through Fleming's land with his consent, and otherwise practically amounts to a general denial of the allegation of the complaint. Before the case was finally disposed of in the district court, Fleming died, and Johanna Fleming, as executrix of his last will, was substituted as plaintiff.
Upon the trial, plaintiff offered testimony tending to show the extent of the damage to the meadow land, and that the same was caused by water seeping from the defendant's ditch and rested. The evidence offered by the defendant tended to show that the injury to plaintiff's land resulted from water escaping from a certain slough on plaintiff's land with which defendant had nothing whatever to do. Defendant also offered some testimony tending to show that his ditch was constructed and maintained in a good, workmanlike manner and that there was in fact no seepage from it. The plaintiff asked the court to instruct the jury to the effect that, if plaintiff's lands were injured by seepage waters escaping from defendant's ditch, then the verdict should be for the plaintiff, without regard to the question of negligence on the part of the defendant in the construction or operation of the ditch. This request was refused, and, in lieu of it, the court instructed the jury that the defendant was bound to exercise ordinary care in the construction and maintenance of the ditch, and, if he exercised such degree of care, "then he would not be responsible for the damage complained of, through the seepage of water from his ditch, if you find from the evidence there was any such seepage." A general verdict was returned in favor of the defendant, and a judgment entered thereon. From an order denying plaintiff a new trial, this appeal is prosecuted.
The plaintiff's theory of the case is illustrated by the instruction which the court was requested to give, as above set forth. The defendant's theory is illustrated by the instruction given by the court in lieu of that asked by the plaintiff. These different theories of the respective parties present the principal question for solution, and, singularly enough, each of them is relying upon the former decisions of this court to support his contention. The plaintiff relies upon Fitzpatrick v. Montgomery, 20 Mont. 181, 50 P. 416, 63 Am. St. Rep. 622, and Lincoln v. Rodgers, 1 Mont. 217, and Nelson v. O'Neal, 1 Mont. 284, cited in the Fitzpatrick Case; while respondent relies upon Hopkins v. Butte & M. Com. Co., 13 Mont. 223, 33 P. 817, 40 Am. St. Rep. 438, and upon King v. Miles City Irr. D. Co., 16 Mont. 463, 41 P. 431, 50 Am. St. Rep. 506. If appellant's theory is correct, and the question of negligence does not enter into a case of this character, then every ditch owner is an insurer of his ditch against damage therefrom to his neighbor, unless such damage is occasioned by an act of God or inevitable accident; and her counsel confidently rely upon the Fitzpatrick Case above to support this contention.
The Fitzpatrick Case was decided by this court in 1897, the Hopkins Case in 1893, and the King Case in 1895. In submitting the Fitzpatrick Case to this court, attention was directed particularly to the Hopkins and King Cases, but, though Chief Justice Pemberton wrote the opinion in the Hopkins Case, and also in the Fitzpatrick Case, no mention is made of either of these two earlier cases in the opinion in the Fitzpatrick Case; so that we must assume that the court did not intend to overrule either, or both, of its former decisions, but, on the contrary, differentiated the cases. In Fitzpatrick v. Montgomery it appears that Montgomery, a subsequent appropriator of the waters of Buffalo creek, so conducted his placer mining operations above Fitzpatrick's land that tailings and other débris were carried down that creek and deposited upon Fitzpatrick's land, rendering it unfit for agricultural purposes, and that such deposit of tailings and other débris in the creek, which flowed through Fitzpatrick's land, caused the creek to cut a new and different channel through his land. Fitzpatrick was the prior appropriator of the waters of the same creek. The decision of this court appears to have been rendered upon precedent, rather than upon principle, and nearly every case cited in the opinion relies upon and applies the principle which counsel for plaintiff sought to have the trial court in this case embody in the offered instruction, namely: "That every one must so use his property as not to injure that of his neighbor." This principle of law finds expression in the maxim "sic utere tuo ut alienum non laedas," which our Civil Code, in section 4605, has translated as follows: "One must so use his own rights as not to infringe upon the rights of another." It the courts whose decisions are cited and relied upon in the Fitzpatrick Case entertained the idea that this maxim is not applicable to negligence cases, they were mistaken. While it is true that by adopting a Code we have abolished common-law forms of pleading, this abolition does not in any sense change the fundamental rules of substantive law, and we must still resolve questions presented in our litigation with reference to those ancient rules of law which had reason, experience, and the necessities of society for their foundation.
At the common law the Fitzpatrick Case would have fallen into one of two classes of cases, trespass, or trespass on the case, the first of which might, or might not, involve a question of negligence, depending upon the particular circumstances, while negligence is the very gist of the latter. Holmes on Common Law, 106. The maxim above was repeatedly applied in actions of trespass. It was likewise applied repeatedly in actions of trespass on the case. In Gerke v. California Steam Nav. Co., 9 Cal. 251, 70 Am. Dec. 650, the court said: ). ' This maxim furnishes, in a general sense, the rule by which every member of society possesses and enjoys his property; but it is not an ironclad rule, without limitations. If applied literally in every case, it would largely defeat the very purpose of its existence; for in many instances it would deprive individuals of the legitimate use of their property, and, for all practical purposes, destroy it. Hentz v. Long Island R. R. Co., 13 Barb. 646. The doctrine of the maxim is not inconsistent with the rule of law that a man may use his own property as he pleases, for all purposes for which it is adaptable, without being answerable for the consequences, if he is not an active agent in designedly causing injury, if he does not create a nuisance, or if he exercises due care and caution to prevent such injury. Fisher v. Clark, 41 Barb. 329.
In Gibson v. Puchta, 33 Cal. 310, which was an...
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