McCarty v. Boise City Canal Company

• Decision Date: 08 March 1886
• Citation: 10 P. 623,2 Idaho 245
• Parties: McCARTY v. BOISE CITY CANAL COMPANY
• Court: Idaho Supreme Court

10 P. 623

2 Idaho 245

McCARTY v. BOISE CITY CANAL COMPANY

Supreme Court of Idaho

March 8, 1886

IRRIGATION-OVERFLOW OF WATER FROM DITCH-INJURY TO ADJOINING LAND-LIABILITY.-A person owning a ditch from which water escapes upon the premises of the adjoining owner, allowing such water to continue to escape from his ditch after notice, without any effort to prevent the same, cannot escape the liability for damages done thereby on the ground that the adjoining land owner might, at a slight expense, have prevented any damage by digging a ditch on his land that would have conducted said water off his premises.

NEGLIGENCE-CONTRIBUTORY NEGLIGENCE.-A person guilty of negligence cannot avoid responsibility therefor on the ground that others are also guilty of negligence contributing to the same injury.

APPEAL from District Court, Ada County.

Judgment affirmed as to damages, and reversed as to granting the injunction.

Brumback & Lamb, for Appellant.

It is not only the moral, but the legal, duty of a party who seeks redress for another's wrongs to use due diligence in preventing loss thereby. (Sedgwick on Damages, 7th ed., pp 164, 173, and notes; Pacific R. R. Co. v. Mihlman, 17 Kan. 224; 1 Sutherland on Damages, pp. 148-155; The Baltimore, 8 Wall. 377; Chase v. New York R. R. Co., 24 Barb. 273.) If by want of ordinary care a plaintiff may have avoided the consequences of defendant's negligence he is considered to be the cause of his own injury. (Weeks' Damnum Absque Injuria, 240; Hance v. Cayuga etc. Ry. Co., 26 N.Y. 428.) It is the duty of a person to use ordinary and reasonable care and means to prevent an injury and its consequences, and he can only recover damages for such losses as could not by such care and means be avoided. (Weeks' Damnum Absque Injuria, 245; Douglas v. Stevens, 18 Mo. 362; Illinois Co. v Finnegan, 21 Ill. 646; Broom's Legal Maxims, 279; Loker v. Damon, 17 Pick. 284; Thompson v. Shattuck, 2 Met. 617; Hamilton v. McPherson, 28 N.Y. 76, 84 Am. Dec. 330; Hassa v. Jinger, 15 Wis. 598; Darwin v. Potter, 5 Denio, 307.) The rule as to the degree of diligence and care required of defendant is well established. The defendant was bound to the use of such care in the management of its ditch, as prudent persons employ in the conduct of their own affairs. (Hoffman v. Water Co., 10 Cal. 413; Wolf v. Water Co., 10 Cal. 544; Richardson v. Kier, 34 Cal. 63, 91 Am. Dec. 681; Campbell v. Water Co., 35 Cal. 682; Chidster v. Ditch Co., 59 Cal. 204; Todd v. Cochell, 17 Cal. 98; Panton v. Holland, 17 Johns. 99, 100, 8 Am. Dec. 369.)

Huston & Gray, for Respondent.

A general specification of error, that the evidence is insufficient to justify the verdict, is not sufficient. (Mahony v. Van Winkle, 21 Cal. 552; Reamer v. Nesmith, 34 Cal. 624; Cross v. Zane, 45 Cal. 89; Preston v. Hurst, 54 Cal. 596; Phillips v. Lowry, 54 Cal. 584; Code Civ. Proc., sec. 413.) The evidence was conflicting; the question as to the negligence of defendant was a question of fact and was properly submitted to the jury. (Siegel v. Eison, 41 Cal. 109; Fernandas v. Sacramento City R. R. Co., 52 Cal. 45; Jameson v. S. J. etc. R. R. Co., 55 Cal. 593; McNamara v. N. P. R. Co., 50 Cal. 581; Reynolds v. Scott (Cal.), 4 P. 346; Nehabas v. C. P. R. R. Co., 62 Cal. 329; Denver etc. R. Co. v. Conway, 8 Colo. 1, 54 Am. Rep. 537, 5 P. 142.) When the evidence is conflicting, neither the verdict of the jury nor the findings of the court will be disturbed. (1 Rhodes' California Digest, p. 67, sec. 755; Marble v. Foy, 49 Cal. 585; Doe v. Vallejo, 29 Cal. 385; Brewster v. Sime, 42 Cal. 139; Fitzgerald v. Union Ins. Co., 54 Cal. 599; Wakefield v. Bouton, 55 Cal. 109; Hughes v. Sweeney, 67 Idaho 93, 24 N.W. 607.) The failure of plaintiff to dig a ditch or drain to carry off the water that was allowed to flow upon her land from the ditch of defendant through the negligence of defendant is in no sense contributory negligence. (Philadelphia etc. R. R. Co. v. Hendrickson, 80 Pa. St. 182, 21 Am. Rep. 97; Philadelphia etc. R. Co. v. Shultz, 93 Pa. St. 341; Kellogg v. Chicago etc. W. R. R. Co., 26 Wis. 223, 7 Am. Rep. 69; Salmon v. Delaware etc. R. Co., 38 N. J. L. 5, 20 Am. Rep. 356; Delaware etc. R. Co. v. Salmon, 39 N. J. L. 299, 23 Am. Rep. 214; Fitch v. Pacific R. R. Co., 45 Mo. 322; Richmond etc. R. R. Co. v. Medley, 75 Va. 499, 40 Am. Rep. 734; Louisville etc. Ry. Co. v. Richardson, 66 Ind. 43, 32 Am. Rep. 97, and note; Flynn v. San Francisco etc. R. R. Co., 40 Cal. 14, 6 Am. Rep. 595, and note; Burroughs v. Housatonic R. R. Co., 15 Conn. 124, 38 Am. Dec. 75; Nehrbas v. C. P. R. R. Co., 62 Cal. 329; Snyder v. P. C. etc. Ry. Co., 11 W.Va. 37.) Negligence of third parties concurring with that of defendant to produce the injury no defense. (Cooley on Torts, 684; 4 Wait's Actions and Defenses, 719.) If the charge given by the court covers the entire case, and submits it properly to the jury, the court may refuse to give further instructions. (Ind. etc. R. R. Co. v. Horst, 93 U.S. 291; Rogers v. Marshall, 1 Wall. 649; Harvey v. Tyler, 2 Wall. 338; Tabor v. Cooper, 7 Wall. 565; Denver etc. R. Co. v. Conway, 8 Colo. 1, 54 Am. Rep. 537, 5 P. 142; Cunningham v. U. P. R. Co., 4 Utah, 206, 7 P. 795.) The court found that the injury was the result of defendant's carelessness and neglect. The granting of a perpetual injunction by the court was proper. The effect of the water from defendant's ditch, through the neglect of defendant allowed to flow upon her land, was a nuisance. (Idaho Ter. Rev. Laws, p. 145.) The plaintiff having established her right at law by obtaining a judgment, was entitled to the remedy. (High on Injunctions, secs. 739-753; High on Injunctions, secs. 879, 1,309; High on Injunctions, sec. 356; Evans v. Ross (Cal.), 8 P. 88; Ramsey v. Chandler, 3 Cal. 90.) The evidence showed the injury was continuing and irreparable. (Tuolumne W. Co. v. Chapman, 8 Cal. 392.) To prevent multiplicity of suits. (Scofield v. Lake Shore etc. Ry., 43 Ohio St. 571, 54 Am. Rep. 846, and note, 3 N.E. 907.)

BUCK J. Hays, C. J., and Broderick, J., concurring.

OPINION

BUCK, J.

The defendant is a corporation existing under the laws of Idaho territory, organized for the purpose of digging and operating a ditch for irrigation. The ditch is constructed across the farm of plaintiff. The complaint filed June 17, 1884, alleges, in substance, that during the years 1883 and 1884 the plaintiff's land had been damaged by water escaping from the ditch and running upon it during said years, and prior thereto, through defects in the same, and by carelessness and mismanagement in operating the same, in the sum of $ 400. The defendant, answering, alleges, among other things, that said damage, if any, was the result of the carelessly and negligently flowing water thereon by plaintiff, and from rains and floods, and denies all the allegations of the complaint. The cause was tried by a jury, who found a verdict for plaintiff, and assessed her damages in the sum of $ 150. The appeal is taken from the judgment, and from the order overruling a motion for a new trial. A bill of exceptions is incorporated in the record.

The first assignment of error is that the verdict is unsupported by the evidence in that the evidence is not sufficient to prove that water in sufficient quantity to injure the land of plaintiff ever escaped through or over defendant's ditch upon the same. The second error assigned is that the evidence shows that whatever damage was done to plaintiff's land was done by irrigating land above plaintiff's land, by others than defendant, and by the plaintiff's careless irrigating of her own land surrounding the portion alleged to have been injured. Evidence upon both of these propositions was submitted to the jury, and it was their especial province to determine its weight and credibility. Except in the absence of all evidence, we cannot disturb their findings thereon. The third alleged error is the refusal of the court to allow the defendant to show that, at a small expense on the part of plaintiff, any surplus water that may have come from defendant's ditch could have been conducted off of the land of plaintiff, so that the same would do her no harm. This proposition involves the main issue of the appeal. The important question is, What are the relative duties and obligations of the ditch owners and the owners of the land through which the ditch runs?

It is admitted that the alleged overflow and seepage had continued with the knowledge of defendant for at least a year; that the plaintiff had notified the defendant of the alleged defects in its ditch, and offered to repair the same so that no water should escape therefrom upon her premises for twenty-five dollars, and that the defendant had declined said proposition. The theory and claim of defendant is that the plaintiff was under a legal obligation to dig a ditch upon her own premises, if it could be done at a small expense, and thus conduct the said seepage from defendant's ditch off from her land. If this be true then it results that ditch owners have such a dominion over the lands through which their ditch is located as gives them not only a right of way for lateral ditches to conduct off water escaping from their main ditch through the adjoining land, but also that such escape ditches shall be maintained by such adjoining owners, providing that it can be done at a small expense. We do not understand that the doctrine relied on can be extended so far. The plaintiff is entitled to control her own premises. (Flynn v. Railroad Co., 40 Cal. 14, 6 Am. Rep. 595; Yik Hon v. Water Works, 65 Cal. 619, 4 P. 666; Burroughs v. Railroad Co., 15 Conn. 124, 38 Am. Dec. 64; Railroad Co. v. Hendrickson, 80 Pa. 182, 21 Am. Rep. 97; Fero v. Railroad Co., 22 N.Y....