Garden City Company v. Bentrup

• Citation: 228 F.2d 334
• Decision Date: 17 November 1955
• Docket Number: No. 5112.,5112.
• Parties: GARDEN CITY COMPANY, a corporation, and United States Irrigating Company, a corporation, Appellants, v. Charles BENTRUP, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

228 F.2d 334 (1955)

GARDEN CITY COMPANY, a corporation, and United States Irrigating Company, a corporation, Appellants, v. Charles BENTRUP, Appellee.

No. 5112.

United States Court of Appeals Tenth Circuit.

November 17, 1955.

Logan N. Green, Garden City, Kan. (Malcolm Miller, Wichita, Kan., Ray H. Calihan, Daniel R. Hopkins, Ray H. Calihan, Jr., Garden City, Kan., on the brief), for appellants.

Donald R. Newkirk, Wichita, Kan. (Howard T. Fleeson, Homer V. Gooing, Wayne Coulson, Paul R. Kitch, Dale M. Stucky, Theodore G. Giesert, Wichita, Kan., on the brief), for appellee.

Before BRATTON, MURRAH and PICKETT, Circuit Judges.

PICKETT, Circuit Judge.

Charles Bentrup brought this action against Garden City Company, a corporation, and its subsidiary, United States Irrigating Company, a corporation, to recover damages for loss of crops resulting from the seepage of water on the plaintiff's land from a reservoir owned by the defendants.¹ The complaint charged two elements of negligence: one, maintaining the water in the reservoir at such a high level over long periods of time that the pressure from the water caused the natural underground water table to rise sufficiently so as to appear at or near the surface of the plaintiff's land, and two, failing to maintain the dikes and bottom of the reservoir in a condition to prevent seepage. The case was tried to a jury which returned a verdict in favor of the plaintiff. This appeal is from a judgment entered upon that verdict.

The judgment is challenged upon the ground that no cause of action was stated in the complaint, and no facts were proved which as a matter of law would entitle the plaintiff to a judgment. This presents the principal questions for determination.

Kansas General Statutes, 1949, Section 42-321 provides:

"Structures for the prevention of floods and waste; liability for damage. The proprietors of every canal, fountain, ditch, conduit or other works for conveying, collecting, retaining or storing waters shall construct and always maintain in good order and repair the dams, locks and gates, embankments, and all other appurtenances thereof, so that the water conveyed, collected, retained or stored thereby may not flood or damage the premises of others, or any highway, or unnecessarily run to waste, and shall be liable for all damages resulting from their willful or negligent failure to comply with any of the provisions of this act, or from their negligence in the construction, maintenance or operation of any such works."

The parties agree that this statute qualifies the common law rule of absolute liability for damages caused by the escape of impounded water as illustrated in Fletcher v. Rylands, L.R.I. Exch. 265, 1 E.R.C. 235. The statute makes the proprietor responsible for damages caused by willful and negligent acts. We find it necessary to consider only the negligence of the defendants.

Under the statute, a claim for damages caused by water seeping from ditches or reservoirs is in the same category as any other negligence action. In other words, the owner of the irrigation ditch or reservoir is bound to exercise reasonable care and skill to prevent injury to others. The owner is not an insurer against damages and is only liable for damages sustained by others as a result of negligence or unskillfulness in constructing, maintaining or operating a ditch or reservoir. Charvoz v. Bonneville Irr. Dist., Utah, 235 P.2d 780; Taylor v. Roosevelt Irr. Dist., 71 Ariz. 254, 226 P.2d 154, affirmed 72 Ariz. 160, 232 P.2d 107; Knight v. Utah Power & Light Co., 116 Utah 195, 209 P.2d 221; West Union Canal Co. v. Provo Bench Canal & Irr. Co., 116 Utah 128, 208 P.2d 1119; Albrethson v. Carey Valley Reservoir Co., 67 Idaho 529, 186 P.2d 853; Kaylor v. Recla, 160 Or. 254, 84 P.2d 495; Jensen v. Davis & Weber Counties Canal Co., 44 Utah 10, 137 P. 635; Annotation 169 A.L.R. 523. The overwhelming weight of authority is to the effect that the construction or maintenance of a ditch or reservoir in a place or upon soil where it is impossible to retain water and prevent seepage constitutes a failure to exercise the required diligence, care and skill in construction, maintenance or operation of such ditch or reservoir, and amounts to negligence. In an early case, Howell v. Big Horn Basin Colonization Co., 14 Wyo. 14, 81 P. 785, 791, 1 L.R.A.,N.S., 596, the Wyoming Supreme Court recognized that negligence must be proved and announced the rule as follows:

"But if it be true that the ditch was constructed in such a place and manner or through such soil that it was impossible to prevent the continuous and large amount of seepage that occurred, or at least to avoid the injurious consequences thereof, then it might be difficult to find any reasonable basis for holding that the defendant had exercised the required diligence, care, and skill in constructing its canal."

Upon varying facts the rule has generally been followed in other jurisdictions. See Tacea Tsouras v. Brighton & North Point Irr. Co., 119 Utah 354, 227 P.2d 329; Jacoby v. Town of City of Gillette, 62 Wyo. 487, 174 P.2d 505, 177 P.2d 204, 169 A.L.R. 502; Massetti v. Madera Canal & Irrigation Co., 20 Cal. App.2d 708, 68 P.2d 260; Tormey v. Anderson-Cottonwood Irr. Dist., 53 Cal. App. 559, 200 P. 814, 816;² Calvert v. Anderson, 73 Mont. 551, 236 P. 847; Jensen v. Davis & Weber Counties Canal Co., supra.

Spurrier v. Mitchell Irr. Dist., 119 Neb. 401, 229 N.W. 273, 74 A.L.R. 884, is not to the contrary. In that case an attempt apparently was made to establish absolute liability without any evidence of negligence except the fact of seepage. The Supreme Court of Nebraska recognized that the owner of an irrigation canal was not an insurer against damages caused by seepage and was liable only for negligence. Edmonds v. Glenn-Colusa Irrigation District, 217 Cal. 436, 19 P.2d 502; Mackay v. Breeze, 72 Utah 305, 269 P. 1026; Cf. Fleming v. Lockwood, 36 Mont. 384, 92 P. 962, 14 L.R.A.,N.S., 628. These cases accept the general rule of liability for damages resulting from negligence, but hold that no negligence was proved.

The trial court submitted the case to the jury upon the theory that if the facts were found to be as contended for by the plaintiff, the case came within the foregoing rule. The defendants urge that this furnishes a means of applying the Fletcher-Rylands rule of absolute liability by finding negligence in some form which does not actually exist, and basing the decision on that ground. To some extent this may be true, but the result is in accord with the ancient rule that one must use his own property in such a manner as not to infringe upon the rights of others. Fredericks v. Fredericks, 108 Cal.App.2d 242, 238 P. 2d 643; Albrethson v. Carey Valley Reservoir Co., supra; Kall v. Carruthers, 59 Cal.App. 555, 211 P. 43, 45;³ Calvert v. Anderson, supra; Moore v. Wallis, 191 Ark. 551, 86 S.W.2d 1111; Morgan v. High Penn Oil Co., 238 N.C. 185, 77 S.E.2d 682. Although the Kansas courts have not had occasion to pass on the question, we have no reason to believe that they would not follow the established rule.

In 1906, the defendants began the constuction of a reservoir known as Lake McKinney in Kearney County, Kansas. The reservoir was made by constructing an earthen dam across an open draw for the purpose of restraining water. The original lake was approximately four miles long and one mile wide and held thirty thousand acre feet of water. The impounded water was diverted from the Arkansas River by means of a canal, was supplemented by drainage of rainfall into the draw, and was used to irrigate about fifteen thousand acres of farm land, most of which was owned by the Garden City Company.

In 1920, the plaintiff purchased from the Garden City Company approximately four hundred acres of farm land located immediately below the reservoir dike. The deed of conveyance contained this provision:

"It is understood that the above described land is near Reservoir Number Five (5) and that the party of the second part, by accepting this deed waives on his own behalf and on behalf of his grantees, heirs, administrators, successors and assigns all claims of any kind and character for damages which he may hereafter sustain by reason of the action of the waves of the reservoir or the water of the reservoir being blown out or otherwise overflowing any of the land hereby conveyed."

The underground water table in the area of the plaintiff's land was relatively near the surface, but for almost thirty years he was able to farm the land and produce excellent crops therefrom without any serious interference from seepage. In 1949, there were extremely heavy rains in Western Kansas which filled the reservoir to capacity and flooded the plaintiff's land. Similar rains and floods occurred in 1951. The floods did not destroy the plaintiff's crops, and there was evidence that silt deposits from the floods benefited the lands. From the time of its first use, the reservoir gradually filled with silt which lessened its capacity and required the defendants to raise the water level in order to store sufficient water to meet their obligations. There was some conflict in the evidence as to the effect of the heavy rains on the underground water table. The plaintiff's expert said it was slight. Beginning in 1949, and continuing through the following years, the water level of the reservoir was maintained on an average of several feet higher than in the preceding years.

It was shown that the underground water table under the plaintiff's land reacted directly in relation to the height of the water in the reservoir. The water table under the land adjacent to the reservoir responded almost immediately to the change in the water level of the reservoir, while it took a longer time for a change to occur underneath the lands further away. The plaintiff's expert testified that the higher average height of the water in the reservoir in recent years...