Middelkamp v. Bessemer Irr. Ditch Co.

• Citation: 103 P. 280,46 Colo. 102
• Parties: MIDDELKAMP v. BESSEMER IRRIGATING DITCH CO.
• Decision Date: 06 July 1909
• Court: Supreme Court of Colorado

103 P. 280

46 Colo. 102

MIDDELKAMP v. BESSEMER IRRIGATING DITCH CO.

Supreme Court of Colorado, En Banc.

July 6, 1909

Error to District Court, Pueblo County; N. Walter Dixon, Judge.

Action by E. G. Middelkamp against the Bessemer Irrigating Ditch Company, a corporation. Defendant had judgment on demurrer to the complaint, and plaintiff brings error. Affirmed.

McCorkle & Teller and E. E. Hubbell, for plaintiff in error.

Waldron & Thompson, for defendant in error.

HILL J.

In this action judgment was upon the pleadings. The plaintiff in error, being plaintiff in the court below, in his complaint filed April 11, 1900, alleged, in substance, the corporate capacity of the defendant; plaintiff's ownership July 24 1894, and ever since, of certain lands (describing them) of alleged high value; the defendant's ownership of the Bessemer irrigating ditch by which it diverts large quantities of water from the Arkansas river and distributes it along and under said ditch for irrigation and domestic purposes; that his lands are on the south side of the Arkansas river about 10 miles below the headgate of said ditch; that said ditch is constructed down the south side of the Arkansas river valley upon the high ground to a point several miles below the lands of plaintiff; that said ditch, where it passes the lands of plaintiff, is constructed in loose, porous soil underlaid by a bed of shale extending from the line of said ditch to the plaintiff's land; that both the surface of the land and bed of shale underneath intervening between defendant's ditch and plaintiff's land have a general slope from the ditch to plaintiff's land; that continuously at all seasons of every year since August, 1894, the defendant has diverted a large volume of water from the Arkansas river through said canal, and that by reason of the loose, gravelly soil through which said ditch is constructed, large volumes of water have escaped continuously since August, 1894, from said ditch through the bottom and sides thereof by seepage and percolation, and are carried along the bed of shale above referred to, which, by natural means finds its way to the lands of plaintiff and adjacent lands and is discharged thereon; that said seepage water is charged with alkali and destroys and renders worthless the lands of plaintiff for agricultural and other purposes; that the amount of seepage water discharged on plaintiff's land as aforesaid, independent of the alkali is sufficient to drown and render worthless the plaintiff's land to his damage, etc. A general and special demurrer was filed to this complaint challenging its sufficiency as to stating any cause of action, together with sundry other points therein raised, which was overruled. Thereafter, an answer containing, first, a general denial followed by ten separate and distinct special defenses was filed to which special defenses demurrers were interposed and sustained except as to the third and fourth, to which the demurrers were overruled, the plaintiff elected to stand by his demurrer. Judgment was entered in favor of the defendant, and plaintiff brings the case here upon error for review.

Able arguments, including many citations of authorities, have been presented and carefully considered upon the many vexations and very important questions raised and discussed and which are of general interest in this state, but most of which can be eliminated by basing our decision upon the ruling of the court below in overruling the plaintiff's demurrer to the fourth separate and special defense, which was, in substance, as follows: That this action is barred by the statute of limitations in this, to wit: that this action was not commenced until after the expiration of six years subsequent to the accruing of the right to sue, if any, for the injuries complained of, because said ditch was originally lawfully constructed and completed in 1889 for the conveyance of water for irrigating purposes; that said ditch was a lawful structure carefully and properly built by due warrant and authority of law for the purpose of conveying water to be used for the irrigating of lands lying contiguous or near to the same and belonging to individual stockholders of either the defendant company or its predecessors in interest; that said ditch was designed, intended, and has always continued to be a permanent structure since its completion for the purposes aforesaid, and that water was conveyed into and conducted along said ditch by the predecessors in interest of defendant and by defendant since it acquired the ownership of said ditch, and that the use of said ditch, as aforesaid, began in the year 1889 and has been continuously maintained and used for the conveyance of water ever since said year; that more than six years prior to the commencement of this suit the lands of the plaintiff were to a considerable extent visibly affected and injured by percolating waters, which percolating waters came from the same sources and were produced by the same cause which caused and produced any and all percolating waters that have appeared upon said lands thereafter, and up to the time of the commencement of this suit, and for more than six years prior to the commencement of this suit the plaintiff, or his predecessors in interest, had actual notice and knowledge that their said lands were being continuously injured by percolating waters coming from the same source and produced from the same cause that they now assert in this suit is attributable to waters escaping by percolation from defendant's said ditch. Wherefore defendant avers that the plaintiff's cause of action herein, if it did not accrue at the time of the final completion of said ditch in the year 1889, did accrue when perceptible injury was caused to said premises by said percolating waters, which perceptible injury began and continued for more than seven years prior to the commencement of this suit, and the said plaintiff then and there had the same, if not superior, sources and means of information and knowledge touching the probable extent of the increased future damages which said lands might sustain by reason of the possible or probable augmentation of said percolating waters from year to year thereafter upon said premises, and defendant, therefore, says that, the injuries complained of being in part sustained and perceptible for more than six years prior to the commencement of this action, this suit is therefore barred by the statute of limitations, etc. And without passing upon the questions of the liability of canal companies in all such cases, or deciding whether in the absence of allegations of negligence in the construction and operation of canals, a complaint states a cause of action for remote or consequential damages occasioned by waters seeping therefrom; but assuming for the purposes of this case, as is assumed by this defense (which invokes the statute of limitations), that the complaint states a cause of action, it then presents for our determination the question as to when, if at all, a cause of action accrues and the statute begins to run upon account of damages occasioned by waters continuously seeping from an irrigation ditch which was properly built, being operated by due warrant of law, which was designed, has continued and is intended to be a permanent structure allways, and with no direct allegation of negligence as to the manner of its operation.

In his original brief it is admitted by plaintiff in error that no negligence was alleged in the complaint, and it is claimed none need be; while in a supplemental brief filed later counsel have taken a somewhat different position, wherein they contend the allegation of the construction of the canal through loose porous soil, and its operation through such soil resulting in continuous seepage, is a sufficient allegation of negligence itself, and they contend that under the fifteenth section of the Bill of Rights, which declares that private property shall not be taken or damaged for public or private use without just compensation, and under the provisions of our statutes which impose certain duties in the construction and maintenance of irrigation ditches, the allegation of seepage and the damage resulting therefrom is all that is necessary to be alleged. It is further claimed the operation of the canal, so long as it continues to seep, regardless of the degree of care exercised in its construction and want of negligence in its operation constitutes a continuous nuisance, giving rise to a new cause of action each successive day until the seepage shall be abated, and that plaintiff would have the right to bring successive suits. It is further urged if this position is not accepted, and we should hold only one suit can be maintained, that regardless of the period of time the injury has continued, the seepage constitutes a continuous nuisance, and plaintiff is entitled to recover in this suit for all injury inflicted during the six years next preceding the institution of his action, and in their brief counsel state: 'What, then, is the cause of action set up in the complaint? It is not that the ditch was constructed, nor, primarily, that it was improperly constructed; but that defendant has permitted it to be during nearly six years last past in such a condition as to allow the escape of water. * * * That is the offense, the improper use of a lawful structure, the neglect of defendant to discharge its duty to stop the seepage. * * * Such being the ground of complaint, there was as in all cases of a continuing nuisance a new cause of action each day. Every day that passed in which the defendant neglected to flume or otherwise improve that portion of the ditch at which this leakage occurred * * * witnessed a wrong for which a...