Lisonbee v. Monroe Irr. Co.

• Decision Date: 09 November 1899
• Court: Utah Supreme Court
• Parties: LORENZO LISONBEE, APPELLANT v. MONROE IRRIGATION CO., AND SOUTH BEND IRRIGATION CO., RESPONDENTS

54 P. 1009

18 Utah 343

LORENZO LISONBEE, APPELLANT v. MONROE IRRIGATION CO., AND SOUTH BEND IRRIGATION CO., RESPONDENTS

Supreme Court of Utah

November 9, 1899

Appeal from the District Court Sevier County, Hon. Wm. McCarty Judge.

Action by plaintiff against defendants for damages for improperly constructing and negligently maintaining certain irrigating ditches, and for an injunction restraining defendants from maintaining their ditches so as to injure property of plaintiff. From a judgment for defendants, plaintiff appeals.

Reversed.

Messrs Stewart & Collins, for appellant.

That the owner of a ditch is liable for all waters flowing therein, which as a reasonable man, he should know would find its way therein, see: Jordan v. City of Mt Pleasant, 49 P. 746; North Point Cons. Irrigation Co. v. Utah & S. L. Canal Co., 52 P. 168; State v. Norrell, 53 P. 610. See also: Boynton v. Longley, 6 P. 437; McCarty v. Boise City Canal Co., 10 P. 623; Shields v. Orr Ditch Co., 47 P. 194.

Where an offer of legal testimony is made it is error to refuse it. Jones on Evidence, Sec. 897; Rice on Evidence, 511; 21 Am. St. Rep. 879.

That the remarks of the trial court tended to prejudice the case of the appellant in the eyes of the jury, see: Thompson on Trials, Secs. 218-219; Walker v. Coleman, 49 P. 640; People v. Abbott, 34 P. 500; Surface v. Douglas, 41 P. 207; People v. Glassman, 42 P. 956; Cone v. Citizens' Bank, 46 P. 414; Howland v. Oakland Cons. St. Ry., 47 P. 255.

J. B. Jennings, Esq., for respondent.

The trial court had the verdict of the jury advising it, it had the witnesses personally before it and therefore had every opportunity to determine every fact fully, and the court will be loth to disturb its findings "if there appears in the records competent evidence upon which they are based."

As to the rule of law on this proposition see the following authorities: Rev. Stats. 1898, Sec. 3169, and note; Wasatch Mining Co. v. Jennings, 14 Utah 221; Evans v. Ross, 8 P. 88; Sweetzer v. Dobbins, 4 P. 541; Hewet v. Pilcher, 24 P. 781; Shirley v. Shirley, 27 P. 1097; Arnold v. Sinclair, 29 P. 1133-4; Moore v. Copp, 51 P. 632.

ZANE, C. J. BARTCH, J. and MINER, J., concur.

OPINION

ZANE, C. J.

The plaintiff alleged in his complaint he was the owner of 56 acres of land situated below defendant's canals and lands irrigated from them; that they owned and controlled a certain ditch through which they carried surplus and waste water from off lands irrigated by them to the Sevier river, the source of supply; that such ditch extended through plaintiff's land and had been improperly constructed and was negligently maintained; that in consequence of such defective construction and want of repair the drainage from the higher land irrigated from defendant's canals was collected, and caused to flood a portion of plaintiff's land, washing it away and rendering it unproductive. In his complaint, the plaintiff also declared upon another cause of action similar to the one above set forth, and concluded with a prayer for judgment for $ 575, and for a writ of injunction restraining the defendants from so maintaining their surplus ditch as to injure his property.

The defendants answered denying the improper construction of the ditch, negligence in maintaining it, or that they caused plaintiff's land, or any part of it to overflow, or that any water escaped from their surplus ditch on to it to plaintiff's injury.

Defendants had the right to conduct water through their ditches and to deliver so much as was necessary for the irrigation of the lands of their stockholders or other persons, and if in consequence of improper and negligent irrigation the proprietors of such lands allowed it to escape onto the lands of other persons to their injury, such proprietors would be liable to such other persons for such negligence, and not the canal companies without fault. The law requires canal companies to use reasonable skill, judgment and care in the construction of their ditches and in their maintenance and repair, and imposes upon proprietors of irrigated lands like skill, judgment, and care in the use and control of irrigating water. If such water flows upon the surface of irrigated lands onto adjoining lands of another, to his injury, the person whose negligence causes or permits it must respond in damages. When the lower land becomes soaked and too wet from infiltration and percolation from irrigated land, and is thereby injured and damaged, we are not disposed to hold that the upper proprietor can be held liable when he irrigates his land with reasonable care, using no more water than is reasonably necessary in so doing.

Undoubtedly canal companies and other persons should conduct their surplus waters, or waters they may allow to go to waste in suitable ditches to the source of supply when practicable, or to otherwise control them so they will not injure the property of other persons. Judgment, reasonable skill and care should be used in constructing and maintaining surplus or drain ditches; such ditches should be adequate and suitable to carry such surplus or other water allowed to collect in them so that it may not escape onto the adjoining lands of other persons to their injury, and they should be kept so by necessary repairs, and such ditches should be so constructed as not to obstruct the natural flow of surface or other water to the injury of the lands or crops of other people.

North Point Cons. Irr. Co. v. Utah & S. L. Canal Co., 52 P. 168.

Water controlled by gravitation manifests a power familiar to all capable of accomplishing useful and beneficial purposes or destructive and disastrous consequences and results, and therefore when individuals interfere with or undertake to control such a force as an agency for their own purposes, by the employment of dams, canals or machinery, the law requires them to use judgment, skill, care and caution in the construction and maintenance of such means and appliances, in order that...