Johnson v. Burley Irr. Dist.

• Court: Idaho Supreme Court
• Writing for the Court: SMITH; TAYLOR
• Citation: Johnson v. Burley Irr. Dist., 304 P.2d 912, 78 Idaho 392 (Idaho 1956)
• Decision Date: 12 December 1956
• Docket Number: No. 8333,8333
• Parties: A. Raymond JOHNSON, Plaintiff-Respondent, v. BURLEY IRRIGATION DISTRICT, a Corporation, Defendant-Appellant.

Page 912

304 P.2d 912

78 Idaho 392

A. Raymond JOHNSON, Plaintiff-Respondent, v. BURLEY IRRIGATION DISTRICT, a Corporation, Defendant-Appellant.

No. 8333.

Supreme Court of Idaho.

Dec. 12, 1956.

Nielson & Nielson, Burley, for appellant.

Herman E. Bedke, Burley, for respondent.

SMITH, Justice.

Respondent brought this action to recover damages from appellant for injury to a 1952 crop of potatoes.

Appellant, for a time prior to and during 1952, was a duly incorporated, existing and operating irrigation district under the laws of the State of Idaho.

Respondent during 1952 leased and farmed the NE 1/4 of the SW 1/4 of Sec. 8, Twp. 11 South, Range 23 E.B.M., in Cassia County. He lived on his own farm situate some distance from the leased land.

A main canal of appellant, designated as H-12, extended in a general north and south direction, and carried irrigation water to the north, along the east boundary of respondent's leased land. A branch canal or lateral, known as H-12B, intersected such main canal at a point some 440 feet north of the southeast corner of the leased land. The lateral, about two and one-half to three feet deep, with a five foot base, was constructed on a fill with the top of its banks some five and one-half feet or more higher than the surrounding terrain; it extended diagonally northwesterly across respondent's leased land and then north along the line common to the west boundary line of said land, and the east boundary line of land farmed by one Baker, situate to the west of the leased land. The lateral supplied irrigation water to four users including respondent and Baker. Baker's head gate for the outlet of his water was located on the north extension of the lateral. His irrigation ditch leading from the lateral was designed to accommodate a stream of 150 miners inches of water. This stream was taken out of the lateral by means of flash boards placed in the lateral's head gate structure; this backed up the water in the lateral to a point just beyond the east boundary of the portion of the leased land hereinafter mentioned planted by respondent to potatoes.

Respondent during the 1952 farming season planted to potatoes the westerly 10.32 acres of his leased land, situate immediately to the south of the lateral canal. This tract sloped downward a drop of approximately one foot from its west to its east side; it was effectively diked along its north boundary by the banks of the lateral, along its east and south boundaries by dikes and along its west boundary by the banks of an irrigation ditch.

The lateral canal had been dry for some days prior to September 22, 1952. The morning of September 22nd, and thereafter on one occasion or more, a ditch rider of appellant turned water into the lateral from the main canal, for irrigation of the Baker lands solely. Septemeber 26 1952, during the late afternoon, a break was discovered in the south bank of the lateral at a point about midway on the north boundary of the 10.32 acre tract planted to potatoes. Some four to six feet of the south bank and a portion of the floor of the lateral had been washed away. The potato land was entirely covered with water, which had flowed through the break in the lateral, to the approximate depth of one foot at its upper or west boundary, and two feet at its lower or east boundary. Most of the crop of potatoes, then matured and ready for harvest, were ruined as a direct result of the flooding.

Respondent predicated his action for damages against appellant district on three counts of negligence: First, that appellant negligently turned into the lateral canal an excessive amount of irrigation water, more than the lateral could carry, in attempting to deliver water to the Baker lands; Second, that appellant negligently permitted the banks of the lateral to become infested with gophers and allowed the gophers to burrow at will into, and thereby weaken and break, the banks of the lateral, thusly permitting the water to escape from the lateral and by the resultant flooding, to damage respondent's potato crop; Third, that appellant negligently failed to inspect the lateral during the 1952 farming season thereby to ascertain whether the lateral was safe for the transportation of water.

Appellant denied negligence on its part, and affirmatively alleged that on September 24, 1952, the water escaped onto respondent's lands from the lateral canal through a break caused by gophers burrowing into the banks of the lateral.

The case was tried to a jury. During the course of the trial the court denied appellant's motions for nonsuit and directed verdict. The jury returned a verdict of damages in favor of respondent followed by entry of judgment thereon. The trial court thereafter denied appellant's motions for judgment notwithstanding the verdict and a new trial. Appellant perfected an appeal from the judgment and the order denying a new trial. The disposition of the appeal will only require consideration of the questions raised by the appeal from the judgment.

Appellant by its assignments of error urges insufficiency of the evidence to sustain the verdict of the jury. Appellant contends that while the evidence conclusively shows that gophers--wild animals--digging into the banks of the lateral caused the break, appellant cannot be held responsible for those acts of the wild animals since they were not under appellant's control. Appellant further contends that the evidence fails to show that it was negligent in the operation of the lateral canal or that it could have anticipated the break in its banks.

The evidence though conflicting in some regards fairly reflects proof of the facts hereinafter set forth.

A ditch rider of appellant on September 23, 1952, turned from the main canal into the lateral an estimated stream of some 150 miners inches of water for irrigation of Baker's land. The ditch rider then went to Baker's head gate and after observing that the full stream did not arrive there, went about his usual duties. The next day he turned more water into the lateral but did not again check the water at Banker's head gate. The evidence indicates, though not clearly, that once again he may have turned additional water into the lateral intended for Baker's use. In no such instance did he attempt to ascertain the reason for the increased amount of water, to supply Baker's stream at his head gate.

A stream of 150 inches of water, backed up in the lateral by flash boards at Baker's head gate, raised the level of the water in the lateral to within about six inches of the top of the lateral along the north boundary of respondent's potato tract.

The morning of September 26th Baker noticed that he wasn't getting his full stream of water because the irrigation of certain of his lands, to which he had set the water the night before, was not completed although his normal stream would have covered the land. He did not at that time investigate the cause of the water shortage but attended to business in a nearby town. When he returned during the late afternoon no water was coming through the lateral to his head gate. He then went to the head of the lateral at the main canal and there ascertained that the water was flowing from the main canal into the lateral. He turned the water from the lateral back into the main canal and then notified respondent that the lateral had broken.

About July 24, 1952, respondent noticed water seeping from the bank of the lateral bordering his potato tract which appeared caused by gophers abounding in the vicinity. He repaired the damage to some extent; he then called appellant's manager who came to the scene of the seepage and made further repairs of the canal bank.

Appellant district developed that it maintains a rodent control program and makes expenditures each year for that purpose; that...