Mackay v. Breeze

• Decision Date: 28 March 1928
• Docket Number: 4568
• Citation: 72 Utah 305,269 P. 1026
• Court: Utah Supreme Court
• Parties: MACKAY v. BREEZE et al

269 P. 1026

72 Utah 305

MACKAY v. BREEZE et al

No. 4568

Supreme Court of Utah

March 28, 1928

Rehearing Denied September 1, 1928.

Appeal from District Court, Third District, Salt Lake county; W. M McCrea, Judge.

Action by Roland C. Mackay against W. H. Breeze and another. Judgment for plaintiff, and defendants appeal.

REVERSED, and remanded for a new trial.

P. C Evans, of Salt Lake City, for appellants.

Stewart, Alexander & Budge, of Salt Lake City, for respondent.

HANSEN, J. THURMAN, C. J., and STRAUP, J., concur. CHERRY, J., GIDEON, J., dissenting.

OPINION

HANSEN, J.

In this cause the plaintiff secured a money judgment against the defendants on account of damages to plaintiff's premises caused by seepage water, and the defendants were enjoined from coursing water through an irrigation ditch unless they either lined the same with cement or constructed a water-tight flume or conduit along the course of the ditch. Defendants appeal.

At the time this action was begun and tried, plaintiff was the owner of 2 3/4 acres of land located in the southwest quarter of section 34, township 1 south, range 1 west, Salt Lake meridian, in Salt Lake county, Utah. Plaintiff's land abuts on the Redwood road for a distance of 11 rods, and extends west from the road for a distance of 40 rods. Defendant W. H. Breeze owned 70 acres of land adjoining plaintiff's property on the north, and defendant L. C. Breeze owned 5 acres of land adjoining the land of W. H. Breeze on the north. The land of defendants also lies to the west of and abuts upon Redwood road. In about the year 1880 an irrigation ditch was constructed diagonally across the lands which were owned by the plaintiff and defendants at the time this controversy arose. This irrigation ditch entered plaintiff's land at its southern boundary at a distance of 267.5 feet west of Redwood road, and left plaintiff's land at the north boundary thereof 177 feet west of Redwood road. As the irrigation ditch left the north boundary of plaintiff's land, it entered the land of defendant W. H. Breeze, and continued northeasterly across the land of W. H. Breeze, and then across the land of L. C. Breeze, until it left the land of L. C. Breeze at its east boundary at a point 782.5 feet north of the north boundary of plaintiff's land. The water in this irrigation ditch flows from the southwest to the northeast. The water from the ditch is used to irrigate the land of plaintiff and defendants and also other lands along its course. Some of the lands so irrigated lie beyond and to the east and north of defendant's land.

During the summer and fall of 1923, plaintiff constructed a house upon his land at a point about 50 feet west of Redwood road and 125 feet south of the boundary between plaintiff's land and the land owned by defendant W. H. Breeze. As constructed, the house has a cement lined basement which extends 4 feet below the surface of the ground.

Prior to 1924, none of defendants' land lying to the east of the irrigation ditch and to the west of Redwood road had been cultivated or irrigated. This tract of land, consisting of between 3 and 4 acres, is in the form of a right angle triangle. The old irrigation ditch forms the hypothenuse, Redwood road forms one leg, and the northern boundary line of plaintiff's land forms the other leg, of the right angle triangle. This triangular tract of land could not be irrigated with the water flowing in the old irrigation ditch which formed its hypothenuse. Early in 1924, defendant L. C. Breeze constructed a house on his part of the triangular tract of land near the old irrigation ditch. In the spring of 1924, defendant L. C. Breeze, with the consent of defendant W. H. Breeze, began to level the triangular tract of land so that it could be irrigated. In order to accomplish this purpose, so the defendants claim, it was necessary to construct a new irrigation ditch. A new ditch was constructed by defendant L. C. Breeze during the spring of 1924. When constructed, the new ditch connected with the old ditch where the old ditch entered the land owned by defendant W. H. Breeze, running thence east 177 feet, thence north 782.5 feet, where it again connected with the old ditch where the old ditch left the land of defendant L. C. Breeze. The new ditch thus ran along the two legs of the right angle triangle tract of land, while the old ditch ran along the hypothenuse of this tract of land. All of the new ditch was constructed upon the lands of the defendants. The old irrigation ditch was destroyed soon after the new ditch was constructed. Beginning with the irrigation season of 1924, irrigation water was coursed through the new ditch, and it continued to flow in the new ditch until the trial of this cause.

Plaintiff's original complaint sets out the change made in the irrigation ditch above indicated, and alleges that the change was made wrongfully and in disregard of plaintiff's rights. Nowhere is it alleged the change was negligently made. Defendants contend that the original complaint was drawn and the cause tried by the plaintiff upon the theory that defendants were liable for any and all damages done to plaintiff's property by seepage water escaping from the new ditch, without regard to any negligence in the construction, operation, or maintenance thereof. Plaintiff here disclaims that the original complaint was drawn and the cause tried upon such theory. Whatever may be the fact in this regard, plaintiff cannot succeed in this action in the absence of allegation and proof of negligence or want of ordinary care on the part of defendants in the construction, operation, or maintenance of the new irrigation ditch.

The rule of law announced in the leading English case of Fletcher v. Ryland, 1 E.R.C. 235, where it is held that the defendant was under an absolute duty to keep water which he had collected in a reservoir from doing injury to others, has not generally been applied to ditches and canals. One who constructs a ditch or canal and conveys irrigation water through the same must use ordinary care in the construction, maintenance, and operation of such ditch or canal. The degree of care required to prevent the escape of water is commensurate with the damage or injury that will probably result if the water does escape. Such is the rule of law repeatedly announced in this jurisdiction and generally established in America and England when applied to ditches and canals. Kinney on Irrigation and Water Rights (2d Ed.) vol. 3, § 1672, p. 3079, and cases cited in the footnote; Weil, Water Rights in the Western States (3d Ed.) vol. 1, § 461, p. 489, and cases cited in the footnote; 15 R. C. L. §§ 38, 39 and 40, pp. 486 to 489; 27 R. C. L. § 127, p. 1209; Jenkins v. Hooper Irrigation Co. et al., 13 Utah 100, 44 P. 829; North Point Consol. Irrigation Co. v. Utah & Salt Lake Canal Co., 16 Utah 246, 52 P. 168, 40 L.R.A. 851, 67 Am. St. Rep. 607; Lisonbee v. Monroe Irrigation Co., 18 Utah 343, 54 P. 1009, 72 Am. St. Rep. 784; Belnap v. Widdison, 32 Utah 246, 90 P. 393; Jensen v. Davis & Weber Counties Canal Co., 44 Utah 10, 137 P. 635; Comp. Laws Utah 1917, § 3474.

This cause, however, was not submitted to the court for decision upon the original complaint. The evidence was completed March 16, 1926, and the time for argument was set for May 7, 1926. On the date set for argument, plaintiff asked and was granted leave to file an amended complaint. The amended complaint was filed July 1, 1926. The findings of fact, conclusions of law, and judgment were evidently signed in October, 1926, the exact date not appearing. They were filed on October 29, 1926. The defendant objected to the filing of the amended complaint upon various grounds and upon this appeal assigns as error the order of the trial court granting leave to file the same. It is here urged on behalf of the defendants that the amended complaint introduced a new and distinct cause of action. The amended complaint, for the most part, is substantially the same as the original complaint. Both complaints seek to recover damages done to plaintiff's house land, and crops by reason of seepage water escaping from the new ditch, and for injunctive relief. The amended complaint charges defendants with negligently and carelessly constructing the new ditch through gravelly, porous, sieve-like materials, without making provision to prevent the water from seeping and percolating through the sides and bottom thereof, and turning the water therein when the ditch would not carry the same. The original complaint did not contain these allegations. We are of the opinion that the amended complaint did not change the plaintiff's alleged cause of action. The right to amend the complaint in this cause comes within the rule laid down in Larsen v. Gasberg, 43 Utah 203, 134 P. 885.

The plaintiff bases his claim for damages and for injunctive relief upon negligence in three particulars: (1) That the gradient of the new ditch is not as great as that of the old ditch; (2) that the new ditch, as constructed, contains two abrupt turns; (3) that the new ditch was constructed across porous soil through which water readily seeped, and that no provision was made to prevent the water flowing in the new ditch from seeping into plaintiff's premises. There is no substantial evidence in the record that the new ditch does not have a proper gradient. The evidence offered by plaintiff shows that, when the old ditch, which crossed the lands of the parties to this action, was constructed, its average gradient was 3 feet per mile. The new ditch has a gradient of 9 inches, and its length in 959.5 feet. The gradient of the new ditch is therefore approximately 40 per cent greater than the average gradient of the old ditch.

Caleb Tanner, an irrigation...