Mallett v. Taylor

• Citation: 78 Or. 208,152 P. 873
• Parties: MALLETT v. TAYLOR.
• Decision Date: 16 November 1915
• Court: Oregon Supreme Court

152 P. 873

78 Or. 208

MALLETT v. TAYLOR.

Supreme Court of Oregon

November 16, 1915

In Banc.

Appeal from Circuit Court, Malheur County; Dalton Biggs, Judge.

Suit by C. W. Mallett against S. F. Taylor, as administrator of the estate of A. A. Brown, deceased. Decree for plaintiff, and defendant appeals. Affirmed.

This was a suit brought to restrain defendant from negligently permitting water used by him in irrigating his land to escape by overflow and percolation on or into the adjoining lands of plaintiff, whereby it was alleged that plaintiff's lands were rendered too wet and swampy for cultivation and the usefulness thereof for cropping purposes destroyed. The complaint, which is too voluminous for insertion here, was met by denials putting the whole matter in issue, and upon trial had there were findings and a decree for plaintiff from which defendant's administrator appeals.

C. McGonagill, of Ontario, Or. (W. E. Lees, of Ontario Or., on the brief), for appellant. J. W. McCulloch, of Ontario, Or. (McCulloch & Wood, of Ontario, Or., on the brief), for respondent.

McBRIDE J. (after stating the facts as above).

The evidence in the case is somewhat contradictory, but upon the whole we are of the opinion that that produced by plaintiff is based upon more accurate data and that the findings of fact made by the circuit court are correct; and they are therefore adopted as the findings of this court. From these findings it appears that plaintiff and defendant are adjoining landowners, and that a portion of defendant's land is situated on a somewhat higher elevation than a tract of plaintiff's land adjacent thereto; that in irrigating his land defendant does it in such a careless manner that the waste water flows into a depression in the same and accumulates there, and thence flows or percolates through the soil over and wets the adjoining land of plaintiff, rendering it unfit for cultivation. It appears from the testimony that the damage caused by actual overflow is comparatively slight but that the injury caused by percolation of water from the depression before alluded to is so great as to render several acres of plaintiff's land, to a great extent, unfit for cultivation, and that it is apparent, at a not exorbitant expense, defendant could prevent this injury by constructing a proper waste ditch. The evidence shows that he has failed and refused to construct such a ditch, contending here that an irrigator is not required by law to take care of water percolating through his soil into the lands of his neighbor.

It is believed that no legal distinction exists between the case of waters escaping by overflow and waters escaping by percolation, where the cause of such escape can be traced to its source and shown to originate in the ditch, and no case has been cited by counsel which makes such distinction. The case of Fleming v. Lockwood, 36 Mont. 384, 92 P 962, 14 L. R. A. (N. S.) 628, 122 Am. St. Rep. 375, 13 Ann. Cas. 263, merely holds that a ditch owner is not liable for damages caused to adjoining lands by seepage unless it shall be shown that such seepage was the result of his negligence--a proposition upon which courts are divided, as will be hereafter shown. The case of Woodland v. Portneuf-Marsh Valley Irr. Co., 26 Idaho, 789, 146 P. 1106, holds that the owner of a supply ditch furnishing water to settlers along its course is not liable for damages caused by seepage or overflow escaping from ditches owned and constructed by settlers obtaining water from the supply ditch, and incidentally declares, by way of dictum, that the owner of the ditch from which the damage resulted was not liable for such damage unless it was the result of his negligence. Beyond the fact that some of the courts hold that the owner of a ditch or dam causing damage by seepage or overflow is liable irrespective of negligence, while others hold that he is liable only for negligently permitting water to escape from such causes, the courts generally make no distinction between cases of damage arising from water escaping by overflow and those arising from seepage, and logically there can be no reason for any distinction.

The question is not new in this state, but was settled by the opinion of Mr. Justice Moore, in Esson v. Wattier, 25 Or. 7, 34 P. 756, wherein, after citing a number of authorities, this conclusion is reached:

"If a person, by artificial means, raises a volume of water above its natural level, and, by percolation, or by overflow, injures neighboring lands without license, prescription, or grant from the proprietor, the

latter may invoke the interposition of a court of equity, and obtain an injunction to prevent it, when he would sustain irreparable injury, or be compelled to bring a multiplicity of actions to recover the damages as they accrued."

This case establishes the rule in this state that a person who by artificial means causes water to percolate through the soil to the injury of his neighbor does so at his peril and is legally responsible therefor irrespective of negligence. This rule follows the case of Fletcher v. Rylands, L. R. 3 H L. 330, cited by Mr. Justice...