Grand Val. Irr. Co. v. Pitzer

• Decision Date: 11 December 1899
• Citation: 14 Colo.App. 123,59 P. 420
• Parties: GRAND VAL. IRR. CO. v. PITZER.
• Court: Colorado Court of Appeals

59 P. 420

14 Colo.App. 123

GRAND VAL. IRR. CO. v. PITZER.

Court of Appeals of Colorado

December 11, 1899

Appeal from district court, Mesa county.

Action by Laban A. Pitzer against the Grand Valley Irrigation Company. From a judgment for plaintiff, defendant appeals. Reversed.

Charles F. Caswell, B.C. Oyler, and John P. Brockway, for appellant.

Henry W. Ross and Straud M. Logan (B.C. Hilliard, of counsel), for appellee.

WILSON J.

The defendant company is the owner of an irrigation canal, about 15 miles or more in length, in Grand valley, Mesa county. The water for the canal is taken from Grand river, and is used for the irrigation of farming lands in its vicinity belonging to its stockholders. The plaintiff, Pitzer, is the owner of a small tract of cultivated land on the line of, and under, the canal. On September 23, 1896, it is alleged, the canal overflowed, and deposited a large amount of débris on the land of plaintiff, destroying fruit trees and doing other damage. He claimed that the damage occurred through the negligence of the defendant company, and brought this suit to recover therefor. The charges of negligence set forth in the complaint, upon which reliance was had in the trial, were, substantially, that the canal was negligently constructed, in that for a distance of more than 4 1/2 miles east of the plaintiff's land no waste way or other means was provided for carrying off the surplus waters that find their way through the canal from the hills, etc.; also that the company had permitted the erection in the canal of a water wheel at a point near his land, thereby obstructing the current in the canal, and contributing to the damage; and thirdly, at the time of the storm which occasioned the accident no ditch rider or other employé of defendant company was on or about the banks of the canal in the vicinity of plaintiff's land until after the damage had occurred. Plaintiff recovered, and defendant appeals.

There are numerous assignments of error, and considerable stress is laid by the defendant on its contention that the complaint is defective, in that the charges of negligence are not properly stated, and that the plaintiff, in the introduction of his testimony, was not restricted to that which would support only the specific acts of negligence attempted to be alleged. In the view which we take of the case, however, it will not be necessary to discuss this.

It appears that the break or overflow which occasioned the damage occurred during a rainstorm which prevailed continuously for a period of about 18 hours. A large number of witnesses testified, and the overwhelming weight of the evidence--in fact, it is practically undisputed--was that the storm was of the most unprecedented severity experienced since the settlement of the valley. According to the uniform testimony of numerous witnesses, the whole country was flooded for many miles. Bridges on the county roads, railroad tracks and bridges, fences, ditches, and other improvements were washed away. Mr. Allen, who had resided in the valley for more than 10 years, said that the storm was incomparably greater than anything he had ever seen before; that he rode over the country east of town considerably, and during the morning of the storm, as he says: "I rode my horse in a sheet of water, for eighty rods, a foot to two feet deep. A half mile further on, I found the entire country overflowed with a river of water." Mr. Bevier, who had resided in the valley for more than 15 years, testified to the same effect. He said "The storm resulted in washouts all along the ditches and railroads. I was through it all the morning of...