Malmstrom v. People's Drain Ditch Co.

• Decision Date: 11 February 1910
• Docket Number: 1,844.
• Citation: 107 P. 98,32 Nev. 246
• Parties: MALMSTROM et ux. v. PEOPLE'S DRAIN DITCH CO.
• Court: Nevada Supreme Court

107 P. 98

32 Nev. 246

MALMSTROM et ux. v. PEOPLE'S DRAIN DITCH CO.

No. 1,844.

Supreme Court of Nevada

February 11, 1910

Appeal from District Court, Washoe County.

Action by A. A. Malmstrom and wife against the People's Drain Ditch Company. Judgment for plaintiffs, and defendant appeals. Reversed and remanded.

Summerfield & Curler, for appellant. Charles R. Lewers, for respondents.

TALBOT J.

Plaintiffs sued to recover damages claimed to have been caused by the overflow of water from defendant's ditch onto plaintiffs' three lots in the town of Sparks. The ditch had been used for 13 years, and the plaintiffs had erected a house upon and used the premises for about 3 years prior to this suit. The old right of way grade, and track of the Central Pacific Railway Company passed through the lots, and the defendant's drain ditch crosses them diagonally. After the track was straightened and moved to another place a few years ago, the plaintiffs and their grantor leveled the ground and filled in the excavation thereon at the sides of the old grade. The plaintiffs erected a house there about 25 feet in width by 50 feet in length, one end of which extends across the ditch, and underneath the house they constructed a cellar which comes within 5 to 9 feet of the ditch. In the complaint they demand a total of $1,013 damages and an injunction. They allege that during the spring and summer months of the years 1905, 1906, and 1907 defendant allowed moss and weeds to grow and remain in the ditch and other débris to accumulate there, upon, above, and below plaintiffs' premises to such an extent that during each of those years the water in the ditch overflowed the banks into, upon, and over the plaintiffs' premises and stood stagnant upon plaintiffs' garden of vegetables and yard of trees, and filled up and stood stagnant in the cellar "and thereby caused an offensive stench and unhealthy and unsanitary odor to arise and surround and fill plaintiffs' dwelling house and the rooms therein, making life extremely uncomfortable and almost unbearable, to the plaintiffs' damage in the sum of $600; that because of the flooding of plaintiffs' premises the ground under plaintiffs' dwelling house was soaked and made so soft that the house settled and sank down to such an extent that the plaintiffs have been compelled to expend for labor and materials to prevent the settling and sinking of the house $169; that the overflow of the waters destroyed elm trees belonging to plaintiffs to their damage in the sum of $98 and vegetables to the value of $146." There was a verdict rendered by 9 of 12 jurors, and judgment in favor of plaintiffs for $576, from which, and an order denying a motion for a new trial, the defendant has appealed.

The most important one of the numerous assignments of error is that the evidence fails to support the judgment. In this connection we first consider to what extent, if any, the defendant is liable on the principal item for which damage is claimed resulting from water in the plaintiffs' cellar and the consequent unpleasant and unhealthy odors and the settling of the house. It is clear that the defendant is entitled to maintain its ditch there and to have water flow through it to the extent of its capacity or in the volume it flowed during the many years which defendant owned and used the ditch, covering a period much longer than the statute of limitations, prior to the time that the town was laid out or the lots occupied by the plaintiffs. Ennor v. Raine, 27 Nev. 178, 74 P. 1. It appears from the uncontradicted evidence as introduced by the plaintiffs and by the defendant that the plaintiffs planked up the sides of the ditch to a width of four feet and three inches, thereby reducing its width about one-half on top, and that they placed timbers to support the house about one foot from the edge of the ditch after it had been made narrower, which timbers so placed would have been in the ditch if its width had not been so reduced. The engineers estimated that the bottom of the cellar was about 1 foot to 14 inches higher than the bottom of the ditch, and that the banks of the ditch under the house and opposite the cellar were 2 1/2 or 3 feet high. It is shown and undisputed that, during the irrigating season and that part of the year for which damage is claimed, cellars in the neighborhood on ground of about the same and greater elevation were flooded by percolating waters; that in laying water pipes, setting fence posts and electric poles, and planting trees in that vicinity water was found 2 and 2 1/2 feet from the surface. This condition was shown to exist in the street and in other blocks at places more remote from the ditch than plaintiffs' cellar and lots. There was testimony that seepage water came to the surface and stood in the street or road about 50 or 100 feet easterly from plaintiffs' place. It is not denied that these premises are on low ground, and, after examination of all the testimony given during the trial, none is found which raises any doubt that if the depressions on these lots were ever leveled up as high as the ditch, the new earth in them settled so that they were lower than the surrounding country and that water running or seeping into them would remain there. The plaintiff said that water would run up to his house and stand there like a lake.

There is no evidence adverse to the conclusion that water percolated from the ditch or from the soil into the cellar. True, the plaintiff stated that there was no water in the cellar in a hole he dug in December; but this is not out of keeping with the testimony of witnesses for the defendant that the water rises in that vicinity during the irrigating season and recedes later, whch is usual in many other localities. In the dry months a few inches of water in the bottom of the ditch would be lower than the cellar; but when the ditch filled the water in it would be considerably above the bottom of the cellar, into which it would naturally seep if the surrounding soil itself were not saturated with percolating water. The plaintiff testified that water seeped from the ditch into the cellar, that some of it ran over the banks of the ditch, and that when the ditch was mowed and cleaned the water receded. All this may be true, and still the plaintiff may not be entitled to recover.

The defendant had the right to convey at least as much water in the ditch across the plaintiffs' lots as the ditch carried before there was any interference with it by the plaintiffs. It was only liable to keep the ditch in such clean condition and repair below the plaintiffs' premises that no water would have escaped over the banks if the plaintiffs had not narrowed or changed the ditch, and the defendant could keep it filled up to its former high-water mark. Following the practice of former years, the ditch was cleaned in the spring, and the moss and weeds mowed out of it in the summer, during each of the three years for which damages are claimed. By excavating the cellar within a few feet of the ditch and placing the foundations of the house on its banks and in the cellar at the time of the year when the ditch was dry or carried only a little water, plaintiffs acted at their own risk, and defendant would not be liable for injury caused by water seeping through the soil from the ditch or adjacent land into the cellar after the ditch became filled with water in the irrigating season. The cellar and timbers on which the house stood were placed so close to the ditch as to encroach upon a reasonable width for seepage along defendant's right of way acquired by prior use. If the defendant were liable under these conditions, the plaintiffs and others could excavate cellars or lay foundations for buildings at the edge of the ditch along its course and deeper than the ditch and recover damages for any injury caused by water percolating from the ditch, resulting in the deprivation of its use by the defendant and the loss of its vested right. Defendant is liable for any damage caused by overflowing water which would have overflowed if the plaintiffs had not made any change in the ditch; but defendant is not liable for any overflow caused by plaintiffs' narrowing the ditch or lowering the banks, although, if the defendant had kept the ditch better cleaned it might have carried through without injury to the plaintiffs a volume of water less than the ditch originally would have carried. The plaintiffs were at liberty to change the ditch to a flume, pipe, or culvert so long as they did not lessen its capacity nor interfere with the flow as required for the beneficial uses or purposes of the defendant; but they cannot recover for injury resulting from any change in the ditch made by them. If the defendant so neglected to clean the ditch that a part of the water which overflowed into the plaintiffs' premises would have overflowed if the plaintiffs had not changed the size of the ditch, the burden of proof is upon the plaintiffs to show how much damage, if any, was occasioned by that part of the overflow. At least a part of the overflow was caused by the narrowing or lowering of the ditch by the plaintiffs, and they cannot recover for any damage caused by that part. That the plaintiffs reduced its capacity by narrowing it is shown without contradiction, and that they further reduced its capacity by lowering its banks at or near the end of the flume seems almost conclusive under the evidence.

The testimony of the plaintiff that the water ran through after the moss and weeds were mowed out of the ditch, without showing the volume of water at that time, and the testimony of the plaintiffs' engineer, not based on any figures taken in connection with his survey, that he believed the water would run through, can have...