Howell v. Big Horn Basin Colonization Company

• Decision Date: 01 August 1905
• Citation: 14 Wyo. 14,81 P. 785
• Parties: HOWELL v. BIG HORN BASIN COLONIZATION COMPANY
• Court: Wyoming Supreme Court

81 P. 785

14 Wyo. 14

HOWELL v. BIG HORN BASIN COLONIZATION COMPANY

Supreme Court of Wyoming

August 1, 1905

ERROR to the District Court, Sheridan County, HON. JOSEPH L STOTTS, Judge.

Action for damages to land caused by alleged overflow, leakage and seepage of water from an irrigating ditch and reservoir constructed and maintained by the defendant. From a judgment in favor of defendant, the plaintiff brought error.

Judgment reversed and vacated, cause remanded.

E. E Enterline, for plaintiff in error.

It was not incumbent upon the plaintiff in error to construct drainage ditches to carry the water away from his land which was coming upon it from defendant's ditch system, nor could it be successfully urged that the defendant would have the right to go upon plaintiff's land and construct drainage ditches thereon without the consent of the plaintiff. (Sylvester v. Jerome, 19 Colo. 128; McCarty v. Canal Co. (Idaho), 10 P. 595; Yik Hon v. Spring Valley W. W., 65 Cal. 619; Burrows v. R R. Co., 30 Am. Dec., 38; R. R. Co. v Hendrickson, 21 Am. Rep., 97; Ferro v. R. R. Co., 22 N.Y. 209; Cook v. Champlain Transp. Co., 1 Denio, 91; Kellogg v. Ry. Co., 7 Am. Rep., 69.) Hence the objection by plaintiff to the testimony produced by defendant to show that the lands of plaintiff can be drained and used for agricultural purposes should have been sustained, notwithstanding that such evidence was introduced for the purpose of showing that plaintiff's lands had not been permanently damaged, and had not been affected in value by the water running upon the same. The officers of the defendant company had notice and knowledge of the condition of plaintiff's land from the time of the construction of the ditch. It cannot be successfully contended that the injury is not permanent since the land is covered by water and damaged by alkali and mud.

It was error for the court to permit the introduction of evidence that the ditch was constructed under the Carey act, and that the State Engineer accepted the ditch. The court ruled that the evidence was admitted for relieving the defendant from exemplary damages. The testimony was inadmissible for any purpose. The testimony that the engineer accepted the ditch was objectionable as hearsay. The overwhelming testimony in the case proves that water seeps through the reservoir during the entire year, and flows upon plaintiff's land. Therefore, the finding that sufficient quantity of water did not remain in the reservoir the whole year to cause damage is not sustained by the evidence, but is disputed by the great preponderance of the evidence and is sufficient to reverse the judgment. (Edwards v. Murray, 5 Wyo. 553; Jackson v. Mull, 6 Wyo. 55.) The case was partly determined on deposition introduced by both parties. All those witnesses testified to the condition of the land and the drainage of the ditch, and some of such testimony was upon the value of the land. There was but little conflict between these witnesses, and it clearly appears from the depositions that the lands of the plaintiff were very much damaged and permanently injured. The rule, therefore, against disturbing the judgment in the case of conflicting evidence should not apply, since one of the main reasons for the adoption of that rule is not applicable, viz: that the trial court saw and heard the various witnesses and could judge of their credibility better than an appellate court. (Roby v. Roby (Idaho), 77 P. 213.) The findings of the trial court show actual permanent injury, although it is stated therein that the injury is not permanent. The damages which it was found that plaintiff sustained are undoubtedly too small as based upon the great preponderance of the evidence.

The true measure of damages for injuries to land is generally the difference between its value before and after the injury. (Manf. Co. v. Brown, 108 Ala. 508; Rourke v. Cen. Mass. Elec. Co., 177 Mass. 46 (58 N.E. 470); Ry. Co. v. O'Mahoney, 60 S.W. 902; Willits v. Ry. Co., 88 Iowa 302; Drake v. Ry. Co., 63 Iowa 302; Norman v. Ince, 8 Okla., 412; Sullens v. Ry. Co., 74 Iowa 659.) In estimating damages for an overflow of land caused by negligent discharge of surface water thereon, recovery may be had for deposits of earth, clay and like substances naturally resulting from such overflow. (Hunt v. Ry. Co., 86 Iowa 15; Ready v. Ry. Co., 72 S.W. 142.) In this case the plaintiff is entitled to recover damages which may have accrued subsequent to the commencement of the action, as they are the natural result of acts complained of, and do not constitute a new cause of action. (Gould on Waters, Sec. 411; Goodrich v. Marble Co. (Vt.), 13 A. 636; Cosgriff v. Miller, 10 Wyo. 190.) Notice to defendant under the circumstances of this case was not necessary to fix liability. (Drake v. R. R. Co., 63 Iowa 302.)

There is some testimony in reference to consent by plaintiff that the water that came through the spills might go upon the land, but none whatever as to the water which leaked and seeped from the ditch or reservoir; but we contend that the evidence is entirely insufficient to show that the plaintiff consented at any time that the defendant might flood or damage his land. Even if consent had been given that the water might run from the spills upon the plaintiff's land, it cannot be construed as authority for the discharge of large quantities on the land to its injury. (Boynton v. Longley, 19 Nev. 69.) Further, it would seem that the defendant at the time of the plaintiff's alleged consent did not intend to discharge a great quantity of water upon the land of plaintiff, and was not contemplating any right to do so.

The conclusions of law are not warranted by the facts found. The storing of water by the defendant in the dry gulch as a part of its ditch system and of the operation of its ditch constituted a reservoir; and the conclusion of the trial court that it was not a reservoir must be held to be erroneous. Under the statute the defendant is liable for all damages from leakage or overflow of waters in the reservoir caused by floods or breaking of the embankments. (Rev. Stat. 1899, Sec. 974; Ditch Co. v. Zimmerman, 4 Colo. App., 78.) And a person constructing a reservoir by which water is collected, and which may escape by overflow or percolation on the premises of another, is liable for damages caused thereby, though there was no negligence in building or maintaining it. (Ry. Co. v. O'Mahoney, 50 S.W. 1049 (60 S.W. 902); Ditch Co. v. Zimmerman, supra.)

The owner of an irrigating ditch is liable for damage caused by seepage of water through it, and damages can be recovered even though there was no negligence in the construction of the ditch. In this case negligence was proven, however, and under all the authorities the defendant should respond in damages. (Arave v. Idaho Canal Co. (Idaho), 46 P. 1024; Ry. Co. v. O'Mahoney, 60 S.W. 902; Ry. Co. v. O'Mahoney, 50 S.W. 1049; Big Goose & C. Ditch Co. v. Morrow, 8 Wyo. 537; Clear Creek Land & Ditch Co. v. Kilkenny, 5 Wyo. 38; Boynton v. Longley, 19 Nev. 69; Parker v. Larsen, 86 Cal. 236; Drake v. R. R. Co., 63 Iowa 302; Shields v. Orr Extension Ditch Co., 23 Nev. 349.) The plaintiff was endeavoring to recover exemplary in addition to actual damages, as the tort was committed deliberately, recklessly and with the knowledge that the plaintiff's rights were being invaded injuriously. (Cosgriff v. Miller, 10 Wyo. 190.)

E. E. Lonabaugh and D. C. Wenzell, for defendant in error.

Upon a careful examination of the evidence and the authorities bearing on the questions at issue, we feel justified in contending that the findings of the District Court are abundantly sustained both by the evidence and the law. It will appear from the evidence that a license was granted to the defendant by the plaintiff to allow the water escaping from defendant's ditch system to flow over and on the land of the plaintiff, which license had not been revoked. It also appears that at various times after the construction of the ditch the plaintiff informed the officers of the defendant company, upon inquiry, that he did not want the escaping water taken care of, because it would be a benefit to his land. That part of plaintiff's land which was made swampy by reason of flooding and percolation was of little or no value before that, and could be made good agricultural land by proper drainage. It is elementary that, where a license has been granted, an action cannot be maintained for damages arising from acts happening under the license until it is revoked. (Woodard v. Seeley, 50 Am. Dec., 445; Johnson v. Lewis, 33 id., 405; Burkham v. Ry Co., 23 N.E. 799; Wilson v. R. R. Co., 42 N.W. 600; Hathaway v. Yakima W. L. & P. Co., 44 P. 896; Crossdale v. Lanigan, 29 N.E. 824.) A careful reading of the testimony will, we believe, show that the entire ditch system of defendant was carefully and properly constructed, and that there was no negligence either in construction or maintenance. The soil through which the ditch was constructed is loose and sandy, and it is an impossibility to so construct a ditch through such soil as to make it water-tight, until after continued use for a few years it may become so through the accumulation of sediment on the bottom. And the law does not make a ditch owner or ditch company liable for waters percolating or coming through its ditch upon the land of another, except in case of negligence. A ditch company is not answerable for all damages, but is required only to use reasonable skill, judgment and care in the construction and maintenance of its ditch; and with the burden of proof upon the plaintiff in the case there is not sufficient evidence to show negligence on the part of the defendant. (Long on Irr., Secs. 68, 69; King v. Miles City Irr....