Longmire v. Yelm Irr. Dist.

• Decision Date: 23 February 1921
• Docket Number: 16177.
• Citation: 114 Wash. 619,195 P. 1014
• Parties: LONGMIRE et al. v. YELM IRR. DIST.
• Court: Washington Supreme Court

195 P. 1014

114 Wash. 619

LONGMIRE et al. v. YELM IRR. DIST.

No. 16177.

Supreme Court of Washington

February 23, 1921

Department 2.

Appeal from Superior Court, Thurston County; D. F. Wright, Judge

Action by Leonard Longmire and another against the Yelm Irrigation District. Judgment for plaintiffs, and defendant appeals. Reversed, with directions so dismiss.

Geo. F Yantis and Troy & Sturdevant, all of Olympia, for appellant.

Thos M. Vance, of Olympia, for respondents.

TOLMAN J.

Respondents as plaintiffs, brought this action against appellant, as defendant, to restrain the operation of an irrigation canal and to recover damages to growing crops alleged to have been suffered during the year 1918, by reason of the negligent and improper construction and operation of the canal.

At the trial below no evidence of improper or negligent construction or operation was offered, respondents going no further than to offer testimony to the effect that the canal followed a ridge some 30 or 40 feet above the land where the damage is alleged to have occurred, and that the character of the soil of the ridge through which the canal runs is partly gravel, with some sand, and that after the canal was constructed and in operation there was an increased seepage of water from the hillside below the canal onto the lands affected, rendering a portion unfit for cultivation, and lessening and damaging the crops on an additional area.

At the close of respondents' case appellant moved for a nonsuit because of the failure to show negligent construction or operation of the canal (and for other reasons), which motion being denied, it offered evidence tending to show that there was no greater seepage from the hillside when the canal was in operation than when it was not, or than had occurred before the canal was constructed, and also offered evidence to the effect that upon the opposite side of the ridge was a slough containing a considerable body of water upon a higher level than the lands alleged to have been demaged, and distant but little more than 500 feet therefrom, and from which the seepage might have come. A verdict for $450 was rendered against the appellant, who moved for judgment non obstante veredicto, and in the alternative for a new trial. These motions being denied, a judgment was entered on the verdict, from which this appeal is prosecuted.

We have already held that one who impounds water is bound to exercise such reasonable care and caution in the construction maintenance, and operation of his works as a reasonably careful and prudent person, acquainted with the conditions, would exercise under like circumstances, but that he is not an insurer. Anderson v. Rucker Bros., 107 Wash. 595, 183 P. 70, 186 P. 293, 8 A. L. R. 544. The law seems to be well settled in this country that ditch owners are bound to exercise only ordinary care in the construction and maintenance of their ditches (15 Ruling Case Law, 488), and that an owner of land lying below an irrigation ditch cannot recover for damages caused by seepage without showing that the ditch was negligently constructed or operated ( North Sterling Irrigation District v. Dickman, 59 Colo. 169, 149 P. 97, Ann....