Munn v. Twin Falls Canal Co.

• Decision Date: 29 October 1926
• Citation: 252 P. 865,43 Idaho 198
• Parties: JAMES R. MUNN and BERYL E. MUNN, Husband and Wife, and PETER M. MUNN, Appellants, v. TWIN FALLS CANAL COMPANY, Respondent
• Court: Idaho Supreme Court

252 P. 865

43 Idaho 198

JAMES R. MUNN and BERYL E. MUNN, Husband and Wife, and PETER M. MUNN, Appellants, v. TWIN FALLS CANAL COMPANY, Respondent

Supreme Court of Idaho

October 29, 1926

PLEADING-LEGAL REMEDIES HELD APPLICABLE-LIMITATION OF ACTIONS-LIABILITY OF CANAL COMPANY FOR SEEPAGE-NEGLIGENCE NOT ESTABLISHED - COMMON-LAW RULE NOT APPLICABLE - WASTE OF WATER NOT PERMITTED-EVIDENCE-APPEAL AND ERROR-NONSUIT PROPERLY GRANTED.

1. Complaint for damages for alleged negligence of canal company in water-soaking plaintiff's land alleged primary rights to which rules appropriate to legal remedies were applicable rather than rules of equity jurisprudence, within purview of C. S., sec. 6591.

2. Limitations of C. S., sec. 6611, subd. 1, held inapplicable to action for damages from negligence of canal company in water-soaking plaintiff's land.

3. Evidence held not to establish negligence of canal company relative to water-soaking of land on which irrigation ditch was maintained.

4. Under Carey Act (U. S. Comp. Stats., sec. 4685), canal company may not knowingly permit waste of water by user.

5. Proof that canal company furnished excess water to consumer with knowledge that excess was permitted to waste is insufficient to prove that excess seeped on and damaged land of another.

6. Alleged negligence of canal company in failing to operate irrigation system under rotation system as provided in contract will not be considered when such contract is not part of record.

7. Failure to plead alleged liability for cost of drainage ditch under express agreement precludes reliance thereon on appeal.

8. Common-law rule that one diverting water from its natural course does so at his peril and is insurer against resultant damage does not prevail in Idaho 9. Nonsuit or dismissal should not be granted where plaintiff has made out prima facie case, but should be granted on his failure to do so.

APPEAL from the District Court of the Eleventh Judicial District for Twin Falls County. Hon. William A. Babcock, Judge.

Action to recover damages. From a judgment of dismissal plaintiffs appeal. Affirmed.

Judgment affirmed, with costs to respondent. Petition for rehearing denied.

Turner K. Hackman, for Appellants.

The court erred in entering judgment of nonsuit on motion of the defendant, because the evidence clearly shows that there is seepage upon plaintiff's land which has ruined three acres of the orchard, damaging plaintiff at from $ 500 to $ 800 per acre; that said seepage comes from the waters diverted by the defendant company from Snake River, and under the exclusive management and control of defendant company. (Lisonbee v. Monroe Irr. Co., 18 Utah 343, 72 Am. St. 784, 54 P. 1009; Mallett v. Taylor, 78 Ore. 208, 152 P. 873; Stuart v. Noble Ditch Co., 9 Idaho 765, 76 P. 255; Woodland v. Portneuf-Marsh Valley Irr. Co., 26 Idaho 789, 146 P. 1106; State v. Twin Falls Canal Co., 21 Idaho 410, 121 P. 1039.) The evidence shows that defendant company negligently operated its irrigation system by keeping water constantly running in its canals, ditches and coulees, in excess of the needs for irrigation and domestic purposes; and by excessive use of water has caused seepage upon lands of plaintiffs as well as others, and has failed to use a rotation system as is provided in its original contract and articles of incorporation. (State v. Twin Falls Canal Co., supra.)

Even though no negligence be admitted or shown, yet, defendant company is a mutual operating irrigation company and is bound to protect lands within its segregation from damage by seepage by using ordinary care and diligence in using rotation in the furnishing of water to its stockholders. (Mallett v. Taylor, 78 Ore. 208, 152 P. 873; Arave v. Idaho Canal Co., 5 Idaho 68, 46 P. 1024; Stuart v. Noble Ditch Canal Co., 9 Idaho 765, 76 P. 255; McCarty v. Boise City Canal Co., 2 Idaho (225) 245, 10 P. 623; In re Drainage Dist. No. 1, 29 Idaho 377, 161 P. 315; Woodland v. Portneuf-Marsh etc. Co., 26 Idaho 789, 146 P. 1106; Verheyen v. Dewey, 27 Idaho 1, 146 P. 1116; Emison v. Owyhee Ditch Co. (Or.), 62 P. 13; Chidester v. Consolidated Ditch Co., 59 Cal. 197; Jenkins v. Hooper Irr. Co., 13 Utah 100, 44 P. 829; Lisonbee v. Monroe Irr. Co., supra; Parker v. Larsen, 86 Cal. 236, 21 Am. St. 30, 24 P. 989.) It is shown by the allegations of plaintiffs' complaint that said damage occurred, beginning in the year 1918, until the filing of this action, except for the year 1919; said action was not barred by the statute of limitations. (Hill v. Empire State-Idaho Min. & Devel. Co., 158 F. 881; Boise Development Co. v. Boise City, 30 Idaho 675, 167 P. 1032; Deffenbaugh v. Washington Water Power Co., 24 Idaho 514, 135 P. 247.)

James R. Bothwell, for Respondent.

Negligence is never presumed and the burden of proving negligence falls on the party alleging it. (Longmire v. Yelm Irr. Dist., 114 Wash. 619, 195 P. 1014; Maulsby v. Cook, 134 Wash. 133, 235 P. 23.)

The common-law rule relating to seepage has been modified and relaxed in this and other arid states, so that the owner of an irrigation ditch is only liable for damages occurring to others as a result of his negligence or unskilfulness in constructing, maintaining or operating the ditch. (Burt v. Farmers' Co-op. Irr. Co., Ltd., 30 Idaho 752, 168 P. 1078; Nampa & Meridian Irr. District v. Petrie, 37 Idaho 45, 223 P. 531; McCarty v. Boise City Canal Co., 2 Idaho 225 (245), 10 P. 623; Stuart v. Noble Ditch Co., 9 Idaho 765, 76 P. 255; Arave v. Idaho Canal Co., 5 Idaho 68, 46 P. 1024; Verheyen v. Dewey, 27 Idaho 1, 146 P. 1116; In re Drainage Dist. No. 1, 29 Idaho 337, 161 P. 315; City of Boulder v. Fowler, 11 Colo. 396, 18 P. 337; Howell v. Big Horn Basin Colonization Co., 14 Wyo. 14, 81 P. 785, 1 L. R. A., N. S., 596; Fleming v. Lockwood, 36 Mont. 384, 122 Am. St. 375, 13 Ann. Cas. 263, 92 P. 962, 14 L. R. A., N. S., 628; Campbell v. Bear River & Auburn Water Min. Co., 35 Cal. 679; Messenger v. Gordon, 15 Colo. App. 429, 62 P. 959; Anderson v. Rucker Bros., 107 Wash. 595, 183 P. 70, 186 P. 293, 8 A. L. R. 544; North Sterling Irr. Dist. v. Dickman, 59 Colo. 169, Ann. Cas. 1916D, 973, 149 P. 97; Calvert v. Anderson, 73 Mont. 551, 236 P. 847; Nahl v. Alta Irr. Dist., 23 Cal.App. 333, 137 P. 1080; 15 R. C. L. 488.)

Parties will be held to the theory upon which their cause was tried in the lower court, and a different and inconsistent theory cannot be advanced for the first time upon appeal. (Milner v. Earl Fruit co., 40 Idaho 339, 232 P. 581; Miller v. Sheane, 120 Wash. 227, 206 P. 913; Schneider v. Henley, 61 Cal.App. 758, 215 P. 1036; Forsland v. Forsland, 46 Cal.App. 405, 189 P. 327; Blanc v. Connor, 167 Cal. 719, 141 P. 217; 3 C. J. 718, sec. 618.)

In absence of evidence as to how canals were constructed, since negligence is never presumed, the presumption would be that they were properly constructed. (Longmire v. Yelm Irr. Dist., supra.)

When the evidence clearly shows that plaintiff has not made his case, the case may be taken from the jury and a motion for nonsuit granted. (Holt v. Spokane & P. R. Co., 4 Idaho 443, 40 P. 56; Hargis v. Paulsen, 30 Idaho 571, 166 P. 264.)

TERRELL, District Judge. Wm. E. Lee, C. J., and Givens, Taylor and T. Bailey Lee, JJ., concur.

OPINION

TERRELL, District Judge.

This is an action for damages claimed to have been occasioned by the alleged negligence of respondent in water-soaking appellants' land.

The facts are contained in the transcript of evidence, which, of course, cannot be fully summarized, but our interpretation of the effect of which will be discussed in the course of this opinion.

Counsel for appellants makes certain assignments of error which, for convenience, will be designated by number in the order in which they occur in his brief, and will be grouped and combined according to subject matter. Owing to the length of the assignments, their effect only will be stated. They are as follows: The court erred: 1, 2, 5 and 6, because the evidence shows that appellants' land, formerly arid in character, was damaged by seepage water, and said land could only become subject to seepage from respondent's irrigation system; and because it was respondent's duty to relieve the seepage condition on appellants' land by boring wells, digging ditches, etc.; and that even though appellants have not proven negligence, yet, respondent is liable for the injury to appellants' land; 3, because the evidence shows that respondent expressly agreed to reimburse appellants for one-half the cost of the construction of a drainage ditch upon appellants' land; 4 and 7, because the evidence shows that respondent operated, managed and controlled the waters of its irrigation system, and was negligent in operating its irrigation system, in that it kept water constantly running in its canals, ditches and coulees in excess of the needs of irrigation and domestic purposes; and in that it failed to use a rotation system in the distribution of its water as provided in its original contract and articles of incorporation; and in that respondent, in effect, admits liability for the seepage condition; 8 and 9, because the evidence shows that appellants' cause of action is not barred under subd. 1 of C. S., sec. 6611; 10, because it was the duty of the court in considering precedents from the supreme court of this state, or of another state, as laying down a principle of law applicable to the instant case, to ascertain whether there was a legal rule and also an equitable rule of law applicable, and if so, to disregard the legal rule and adopt the equitable rule, and instruct the jury accordingly.

The last assignment, summarized from appellants' brief was not listed by counsel for appellants as such, but was subsequently so...