MacCammelly v. Pioneer Irr. Dist.

• Citation: 105 P. 1076,17 Idaho 415
• Parties: A. C. MacCAMMELLY, Road Overseer, District No. 27, Canyon County, Respondent, v. PIONEER IRRIGATION DISTRICT, a Corporation, Appellant
• Decision Date: 14 December 1909
• Court: United States State Supreme Court of Idaho

105 P. 1076

17 Idaho 415

A. C. MacCAMMELLY, Road Overseer, District No. 27, Canyon County, Respondent, v. PIONEER IRRIGATION DISTRICT, a Corporation, Appellant

Supreme Court of Idaho

December 14, 1909

CANALS AND DITCHES-PUBLIC ROAD LOCATED OVER-DUTY TO CONSTRUCT BRIDGE-STATUTES-CONSTRUCTION OF-RIGHT OF WAY-RIGHT TO CONSTRUCT DITCH ON-BRIDGE A PART OF PUBLIC ROAD-NUISANCE.

1. Held, that the provisions of sec. 931, Rev. Codes, apply to highways across railroads on public lands and not to highways crossing irrigation canals and ditches.

2. Sec 2713, Rev. Stat., is contained in chap. 5, title 4 of the Civil Code, and the title to said chapter is as follows "Water and Canal Corporations," and the four sections of said chapter, to wit, secs. 2710 to 2713 inclusive, were intended to apply to water corporations furnishing water to cities and towns, and not intended to apply to corporations furnishing water for irrigation purposes. (See secs. 2838, 2839, 2840 and 2841, Rev. Codes 1909.)

3. The provisions of sec. 951 of the Rev. Codes apply to ditches which are extended across public streets and highways and not to ditches that were constructed prior to the location of such highways.

4. Under the provisions of sec. 3310, Rev. Codes, it is the duty of the county to construct bridges that are required to complete all roads intersecting ditches or canals laid out after the construction of such ditches or canals; but when ditches or canals are constructed across an existing road or highway, one established by prescription or duly located by the county commissioners, then it is the duty of the owner to construct a proper bridge across such ditch or canal.

5. Held, under the provisions of sec. 3659, Rev. Codes, that a ditch or canal constructed and maintained under the express authority of a statute cannot be deemed to be a nuisance.

6. The cases of Boise City v. Boise City Rapid Transit Co., 6 Idaho 779, 59 P. 716, and City of Lewiston v. Booth, 3 Idaho 692, 34 P. 809, distinguished.

(Syllabus by the court.)

APPEAL from the District Court of the Seventh Judicial District, for Canyon County. Hon. Ed L. Bryan, Judge.

Action to recover from defendant the cost of constructing a bridge over its irrigating canal. Judgment for plaintiff. Reversed.

Judgment set aside, with costs in favor of the appellant.

Rice, Thompson & Buckner, for Appellant.

"Where a canal is in existence and highways and streets are subsequently laid out, the canal company is not bound to bridge the canal at the intersection of such highways and streets." (Lowell v. Proprietors Merrimack River Locks, 104 Mass. 18; Morris Canal etc. Co. v. State, 24 N.J.L. 62; Oswego v. Oswego Canal Co., 6 N.Y. 257; Erie v. Erie Canal Co., 59 Pa. 174; 6 Cyc. 272, par. 27.)

The construction of the canal was a lawful act. As respects the highway subsequently created, the canal is to be regarded, so far as respects the burden of building bridges across it, as if it were a natural stream. It had an actual and lawful existence before the road was laid out, and no new obligations were imposed upon the canal company by the laying out of the way. (Oswego v. Oswego Canal Co., supra.)

To impose upon the defendant the burden of bridging the canal under the facts and circumstances presented in this case can only be based upon the proposition that said canal is a nuisance per se. The canal has not been adjudged a nuisance by judicial determination. No statute of this state can be cited which defines nuisances within the meaning of which this ditch is comprehended. (City of Denver v. Mullen, 7 Colo. 345, 3 P. 693; Griffith v. McCullum, 46 Barb. 561.)

Hugh E. McElroy, and C. E. Winstead, appearing amicicuriae.

"A nuisance per se is an act, occupation or structure which is a nuisance at all times and under any circumstances, regardless of location or surroundings." (29 Cyc. 1153.)

Clearly, an irrigation canal cannot be so construed. It was expressly held otherwise in the case of City of Fresno v. Fresno Canal & Irr. Co., 98 Cal. 179, 32 P. 943. In the case of Ex parte Shrader, 33 Cal. 284, the supreme court of California defines a nuisance per se as follows: "A nuisance per se . . . . is a nuisance which the judge can declare to be such without inquiry into extrinsic facts; that is to say, a nuisance by enumeration rather than by definition."

Smith & Scatterday, amici curiae.

The rule to be applied to this appellant and to the numerous other ditch companies in the older settled portions of the state, where the police power of a city is not appealed to, must be determined strictly upon the statutes regulating the building of bridges and the general law as to private ownership of property without regard to the law of abatement of nuisances which governs the case of Boise City v. Boise Rapid Transit Company. The ditches in question, located as they are in sparsely settled communities, cannot be said to be nuisances in the same way that they would if located in a city.

Owen M. Van Duyn, Prosecuting Attorney for Canyon County, for Respondent.

An unbridged canal upon a public road is a nuisance. (Boise City v. Boise Rapid Transit Co., 6 Idaho 779, 59 P. 716; City of Lewiston v. Booth, 3 Idaho 692, 34 P. 809; sec. 3656, Rev. Codes.)

SULLIVAN, C. J. Stewart and Ailshie, JJ., concur.

OPINION

SULLIVAN, C. J.

This action was brought for the purpose of determining whether it was the duty of the ditch owner to construct a bridge across his ditch or canal when a public highway is laid out across the same after the canal or ditch has been constructed, and was submitted to the court upon an agreed statement of facts.

The agreed facts show that the canal was constructed in 1890 and that the public road across the same was laid out in 1907, seventeen years after the canal had been constructed. It is also stipulated that since 1890, the right of way for said canal has been and now is owned in fee by the Pioneer Irrigation District, a corporation, which corporation is defendant in this action; that since its construction, said canal has been owned and maintained by said irrigation district and its predecessors, and during all of said time has been used for carrying water for irrigation purposes; that said irrigation district is an irrigation district duly organized and existing under and by virtue of the laws of the state of Idaho; that on the 18th day of April, 1907, Canyon County, or the proper officers thereof, laid out and created a public road that intersected and crossed said canal at a certain point in said Canyon county, describing it, that point being in Road District No. 27, and that the plaintiff in this action is the road overseer of said district; that ever since said public road was laid out, the public has been unable to cross said canal at the point where said public road is laid across it, for the lack of a bridge; that it was necessary that a bridge be constructed across said canal for the convenience of the public; that on the 14th day of May, 1908, the road overseer of said district, acting under the instructions of the county commissioner of said county, served notice upon the president of said irrigation district, directing said district to construct a bridge over said canal at the point of intersection with said public road; that the president of said district, under the authority and direction of the board of trustees of said district, refused to build said bridge, on the ground that said canal was constructed prior to the time that said public road was laid out, and because of that fact it was the duty of the county to build said bridge, and not of said irrigation district; that thereafter and before the bringing of this action, Canyon county, by and through its said overseer, built said bridge and that the cost of said bridge, in material and labor, was $ 29.45; that said irrigation district refuses to pay said sum so expended, on the ground that it was not its duty under the law to build the same.

Upon the stipulated facts, the cause was presented to the district court, and the court found that the Pioneer Irrigation District was liable upon said facts and entered judgment against it for the sum of $ 29.45, the cost of the construction of said bridge. From that judgment this appeal was taken.

It is contended, under the agreed facts, that the judgment is contrary to law. The facts show that the appellant, the Pioneer Irrigation District, is an irrigation district duly organized and existing under and by virtue of the laws of the state of Idaho for the purpose of furnishing the people and land owners within said district water for irrigation purposes; that said canal was constructed long prior to the laying out of said public road; that the canal was constructed in 1890 and the public road was laid out in 1907; that ever since 1890 the right of way for said canal has been and now is owned in fee by said irrigation district and its predecessors; that ever since its construction it has been used for carrying water for irrigation purposes.

Both in the oral argument and in the brief filed on behalf of the county, it appears that the county bases its right to prevail in this suit upon the statutes of Idaho and on the decisions of this court in Boise City v. Boise Rapid Transit Co., 6 Idaho 779, 59 P. 716, and City of Lewiston v. Booth, 3 Idaho 692, 34 P. 809.

We will first consider the sections of our statute relied upon by the respondent county. Counsel cites sec. 931, Rev. Codes, and contends that it shows the legislative intent was to compel public corporations to relieve the public of expense caused by artificial construction. Said section is as follows:

"Whenever highways are laid out to cross railroads on public lands, the owners or...