Orr Ditch & Water Co. v. Justice Court of Reno Tp., Washoe County

Decision Date18 March 1947
Docket Number3474.
Citation178 P.2d 558,64 Nev. 138
PartiesORR DITCH & WATER CO. v. JUSTICE COURT OF RENO TP., WASHOE COUNTY, et al.
CourtNevada Supreme Court

Proceeding by Orr Ditch & Water Company against the Justice Court of Reno Township, County of Washoe, Nevada, and The Honorable Harry Dunseath, Justice of the Peace, for a writ of prohibition to arrest certain proceedings pending in justice court of Reno Township, County of Washoe, Nevada, which were instituted under provisions of an act entitled 'An Act to secure persons and animals from danger arising from mining and other excavations' Comp.Laws, §§ 5630-5635.

Respondents' demurrer to petition overruled, and alternative writ of prohibition heretofore issued made permanent.

The obvious objective of the act, as stated in the same section 1, was to require the erection of 'fences, or other safeguards * * *' around such works or shafts, sufficient to securely guard against danger to persons and animals from falling into such excavations. The danger from falling into an excavation of the pit type would be just as great, under similar circumstances as to depth, surrounding formation and other characteristics, whether the excavation was a shaft, or a prospect hole, to obtain ore from the earth or develop same therein, or to obtain water from a well, or whether same did not involve obtaining anything from the earth or developing any substance therein, but was for the entirely different purpose of obtaining access to the basement of a warehouse as was involved in the case of Anderson v. Feutsch, 31 Nev. 501, 103 P. 1013, 105 P. 99. An excavation to receive the foundation for a building would be for a purpose and use altogether different from mining or to obtain water, the terms immediately preceding the phrase 'or for any other purpose' in said section 1, but if such excavation could be fenced for not to exceed $300, the limit of the jurisdiction of justices of the peace under the Nevada constitution, and same, because of its depth or location, was dangerous to persons and animals who might suffer injury from falling into it, such excavation would be within the meaning of that word, according to both its ordinary meaning and its technical meaning. It was so held in Anderson v. Feutsch, supra, the second of the Nevada cases which have dealt with said statute of 1866. In that case the excavation was, as above indicated, for a purpose wholly different from mining or to obtain water, and we agree fully with the following statement, 31 Nev. on page 510, 105 P. 99 100, in the decision upon rehearing, by Norcross, C.J 'The trial court held, and we think correctly so, that the appellants were bound, under the provisions of this statute, to keep the excavation in question protected. The earnestness and apparent sincerity with which counsel for appellant contended that the provisions of this act only apply to excavations for mining purposes may have entitled them to a more extended consideration of the point than that given in our former opinion. We have never been impressed however, that the contention possessed any considerable force. We think it clear, both from the title and body of the act, that it was the intention of the Legislature to protect persons and animals from all excavations, regardless of the purpose for which they were dug. Mining excavations were mentioned particularly, we think, only because they comprise the great majority of all excavations in this state. The great purpose of the act was to protect persons and animals from injury resulting from falling into unprotected excavations. The same injury would result from falling into a certain particular excavation regardless of the purpose for which it was made. For the purpose designed to be accomplished by this act, all excavations are in a common class, and the fact that the Legislature saw fit to specifically designate those made for mining purposes and to comprehend all others in general terms does not, we think, limit the provisions of the law to mining excavations only.'

While Mr. Chief Justice Norcross used the term 'all excavations, regardless of the purpose for which they were dug' and the expression 'for the purpose designed to be accomplished by this act, all excavations are in a common class,' he was dealing with the contention of the defendant in that case that the purposes intended by the act were mining purposes only, and he held, as we hold herein, that the word 'excavation' or 'excavations' is not thus limited, and that the purpose of the excavation is immaterial. It is the character or type of the excavation itself, and not its purpose, which is controlling. Judge Norcross was dealing with an excavation of a pit type which had been dug in, or alongside the sidewalk on Miner Avenue in Goldfield, and was particularly dangerous because of its location in or near the pathway of pedestrians. There is nothing whatever in the opinion to show that by the use of the word 'all' the court intended more than to point out that the word 'excavations' was not confined in its meaning to excavations for mining purposes, but was applicable to such excavations as that involved in the Anderson case. The learned justice, by use of the word 'all' went a little further, if the expression be taken literally, than required to decide the point then in issue, but any such expression is without significance, as the question of whether excavations such as ditches, which are not particularly hazardous, except for danger of drowning, were within the purview of the act of 1866, was not before him, nor was the choice of definitions of the word 'excavation' involved.

The hole or excavation involved in that case was clearly one of the cavity or pit type, within the ordinary meaning of the word 'excavations,' as distinguished from the technical definition, namely, 'an uncovered cutting in the earth,' and there is nothing in the use of the word 'all' by Justice Norcross indicating that he had any excavations in mind, other than those of that type.

The case certainly is not authority to show that 'ditches' were within the purview of the term 'excavations' as employed in the said act. The case of Perry v. Tonopah Mining Co., D.C., 13 F.2d 865, in which the opinion was written by Judge Farrington, dealt with the said statute of 1866, as a statutory basis of liability for negligence. A child had fallen into a stope in Tonopah near a pathway leading from Florence Avenue, and which was much frequented by children. The open stope was what miners call a 'glory hole.' The ore and rock had been mined out 'to the surface, leaving a large opening, about 140 feet deep, which defendant had wrongfully and negligently suffered 'to be and remain unfenced, and without any safeguards whatever to guard against danger to persons, and particularly children, from falling into the same,' and without giving 'any warning or notice whatever to persons, and particularly children.''

Judge Farrington said further in his opinion: 'The danger from open cuts on premises similar to those described in the complaint is obvious. It was the likelihood of just such conditions which prompted the Legislature of the state in 1866 to adopt what is now section 3233 of the Revised Laws of Nevada, and what was then entitled 'An act to secure persons and animals from danger arising from mining and other excavations.'' The statute referred to is the Act of 1866, involved in the instant case. The excavation involved in the Perry case was, as above stated, a mining stope, dangerous because of its depth and location, and, as the court indicated, because it was attactive to children. Such an excavation was one of the put or cavity type, clearly within the provisions of the act, according to the ordinary meaning of the word 'excavation,' and is in no sense authority to show that the act has any application to 'ditches.' The court did not attempt to enforce the penal provisions of the act, but did recognize the act as a basis of liability, together with the common law, for negligence, and under the attractive nuisance doctrine, applicable to children. No question as to the constitutionality of the act was raised. Neither was any question presented or passed upon as to whether its provisions were sufficiently certain and intelligible as to render it enforceable. The case is of no assistance whatever in the determination of any of the questions before us in the instant case. (Emphasis mine.)

Isn't it strange, indeed, that if this act, in existence 81 years, had been intended by the legislature of 1866 to apply to irrigation ditches, that there has been no case before the higher courts, either state or federal, in Nevada involving such application? And the fact that so few cases involving the act in any respect have reached the higher courts has indicated that its enforcement, even as to the hole, pit or cavity type of excavation to which it unquestionably applies, has been very limited indeed. This has no legal significance, but is interesting, and is mentioned merely in an historical sense.

To construe the word 'excavation' to include irrigation ditches would clearly compel the conclusion that the act is unconstitutional as violative of Article VI, sections 6 and 8, N.C.L., Vol. I, 1929, §§ 114, 116, of the Nevada constitution, because to fence or otherwise safeguard an irrigation ditch, such as the Orr ditch, would obviously require an expenditure of many thousands of dollars, and jurisdiction under the 1866 act is conferred upon police judges and justices of the peace, and jurisdiction of the latter, under said constitutional provisions, is limited as to a money demand to an amount not to exceed $300, exclusive of interest. The act does not provide for, or contemplate fencing or...

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