Jenkins v. Hooper Irrigation Co.

• Citation: 44 P. 829,13 Utah 100
• Decision Date: 24 March 1896
• Docket Number: 622
• Court: Supreme Court of Utah
• Parties: JOSEPH JENKINS, APPELLANT, v. HOOPER IRRIGATION CO., ET AL., RESPONDENTS

44 P. 829

13 Utah 100

JOSEPH JENKINS, APPELLANT, v. HOOPER IRRIGATION CO., ET AL., RESPONDENTS

No. 622

Supreme Court of Utah

March 24, 1896

Appeal from the district court of the Fourth judicial district Territory of Utah, Hon. H. W. Smith, Judge.

Action by Joseph Jenkins against the Hooper Irrigation Co., and others, for damages sustained by the negligent use of defendant's canal, whose waters carried alkali onto the land of plaintiff. From a judgment for defendants and an order denying a new trial, plaintiff appeals.

Reversed and remanded.

Rhodes & Tait, for appellant.

Evans &amp Rogers, for respondents.

The testimony of the witnesses for respondent, upon which appellant makes assignments of errors 1--6, showing how other ditches were cleaned, was not introduced for the purpose of making a defense to the charge of not cleaning out the ditch but was proper evidence to meet the evidence of appellant; and was also clearly admissible as impeaching the testimony of appellant. 1 Greenleaf on Evidence, 461; Artz v. R. R. Co., 44 Iowa, Par. 288.

This evidence was not admissible for the purpose of excusing negligence, but was admissible to prove what would be negligence. Barber v. Brace, 3 Conn. 9; Maxwell v. Easton, 1 Stewt. (Ala.) 514; Stimson v. Jackson, 58 N.H. 138.

ZANE, C. J. MINER, J., concur in the result. BARTCH, J., concurring in part and dissenting in part.

OPINION

ZANE, C. J.:

This is an action to recover damages to plaintiff's lands, in consequence, as alleged, of the negligence of defendants in control of their irrigation canal. The plaintiff was at the time this suit was instituted, and for many years previous, the owner and occupant of 25 acres of bottom lands (much of it alluvial) on the south side of the Weber river, in Weber county, which he was using, at the happening of the wrongs complained of, as a garden and orchard. The canal was used between the 1st day of May and the 1st day of the following October, each year, to carry water from the river at a point above plaintiff's lands, and through the south or upper side of it, to lands below, and has been so used for more than 20 years. The complaint is that defendants' canal, in consequence of their inattention and negligence, became and remained, during the time it was not in actual use for irrigation in 1891, 1892, and 1893, filled up and obstructed near the western or lower boundary of plaintiff's land; so that the water, strongly impregnated with alkali, collected in the canal, flowed to that part of the canal on his land, and stood there to the depth of about 16 inches, and soaked, seeped, and percolated through the bottom and sides of the ditch and loose soil, on, into, and through about 13 acres of his land, killing his orchard, and rendering the soil unproductive. A good deal of evidence was offered by the respective parties upon the issue as to negligence, and admitted. There was also evidence tending to show that the canal on plaintiff's land had but very little fall, and that defendants' head gate, at the lower side of plaintiff's land, was 16 or 18 inches too high, and that the bottom of the ditch at this place was filled up. On the other hand the defendants offered evidence that was admitted to rebut plaintiff's proof. The following questions, propounded by the defendants to certain of their witnesses, were objected to by the plaintiff: Having stated that he was acquainted with other ditches leading from Weber river, a witness was asked: "How was this ditch kept and cleaned with respect to other ditches in that same locality?" Answered: "In the same manner." Another stated he was acquainted with the treatment of ditches taking water out of the same river, and was asked: "What is the general custom in regard to cleaning out these ditches?" Answered: "The general custom is to clean them out once a year,--in the spring." Another witness stated he was acquainted with the care given such ditches in Weber county, and was asked "what the customary manner of maintaining and taking care of such irrigation ditches was," and answered: "They are usually cleaned out once in the spring. I have seen the Davis and Weber county ditches cleaned out in both the spring and fall." Another, having stated that he was acquainted with the Plain City ditch, and but little acquainted with others, was asked: "What has been the customary manner during the period of time you have been acquainted with that ditch of cleaning it out?" Answered: "We clean it out every spring." Another witness stated he was acquainted with the control of ditches leading from the Weber river, and was asked: "What is the usual and customary manner of controlling those ditches, and cleaning them out?" Answered: "The ditches are cleaned out once a year,--every spring." Plaintiff's objections to the above questions and answers were overruled, and he excepted to the ruling of the court, and assigns the same as error.

This evidence as to when other irrigation companies cleaned out their canals must have been admitted as tending to prove that defendants were not negligent because they cleaned out their ditch at the same time, or as tending to establish a custom upon which they had a right to rely in their defense. The care and attention which the law required the defendants to give to their ditch, by way of cleaning it out or otherwise could not be tested by the amount of care and attention given by other companies to theirs. The men in charge of their ditches might have been careless or prudent. They may have exercised reasonable care, or they may not have done so. The conditions under which they maintained theirs, as to the fall of the canal, as to soil, as to their liability to fill up, and as to alkali or other matter collecting in them, may have been similar to those under which the defendants maintained theirs, or the conditions may have been very different. The true standard by which to test the charge of negligence was one of prudence and care. The care and attention that ought to have been expected of a prudent and reasonable man under similar conditions and circumstances was the degree of care and attention which should have been demanded of the defendants by the jury. If alkali water collected in defendants' canal, and seeped into and upon plaintiff's land, and ...