Shields v. Orr Extension Ditch Co.

• Decision Date: 02 January 1897
• Docket Number: 1,478.
• Citation: 47 P. 194,23 Nev. 349
• Parties: SHIELDS v. ORR EXTENSION DITCH CO.
• Court: Nevada Supreme Court

47 P. 194

23 Nev. 349

SHIELDS v. ORR EXTENSION DITCH CO.

No. 1,478.

Supreme Court of Nevada

January 2, 1897

Appeal from district court, Washoe county; A. E. Cheney, Judge.

Action by M. Shields against the Orr Extension Ditch Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Torreyson & Summerfield and Thos. E. Haydon, for appellant.

Curler & Curler, for respondent.

BELKNAP J.

Respondent brought this action to recover damages to his land and crops by water escaping from appellant's ditch, and for an injunction restraining a repetition of the wrongs complained of. A trial was had before a jury, which resulted in a verdict for respondent, assessing his damages in the sum of $50.36, and for costs. Thereupon the court ordered judgment to be entered upon the verdict, and granted an injunction restraining defendant from permitting water to escape from its ditch upon a portion of the described premises, and denying it as to another portion used by respondent as pasture land. It was shown at the trial that the ditch of defendant was upon a hillside sloping towards the lands where the damage complained of occurred. The ground through which the ditch ran was rocky and porous, and water constantly escaped, with the knowledge of the defendant, during the irrigating season, when the ditch was full; not by means of overflow, but by seepage and leakage through its banks. These facts were uncontroverted at the trial. Several of the instructions asked for by defendant were refused by the court upon the ground that they were not applicable to the facts of the case as presented by the testimony. One of these was, in effect, that defendant was not liable for a mere accidental injury when no negligence was shown. There was no testimony tending to show that the escape of water was the result of accident; on the contrary, the uncontradicted testimony showed a constant escape of water during the irrigating season, with defendant's knowledge. Another of the refused instructions was, in effect, that defendant claimed a prescriptive right to have the escaping water flow upon plaintiff's land; but, in fact, there was no testimony tending to show such claim. On the contrary, the testimony introduced by defendant itself was inconsistent with the instruction. Again, two proposed instructions, numbered 1 and 2, respectively, in the transcript, were refused by the court. Each of them is drawn upon the theory that defendant might recover if it has not been guilty of negligence. But as the uncontradicted testimony showed negligence of defendant in permitting water to escape from its ditch, the issue of negligence was eliminated from the case. They were therefore, inapplicable and misleading. An instruction also was asked to the effect that the plaintiff himself should have exercised ordinary care to have avoided the consequences of defendant's acts, and, failing to do so, the parties were in mutual fault. The doctrine of contributory negligence is not applicable to cases of this nature, where the defendant had knowledge of the defects of its ditch, and could have prevented the injury. Under these circumstances no duty rested upon plaintiff to have avoided the consequences of defendant's acts. In a case from Idaho, the supreme court of that state said: "A person owing a ditch, from which water escapes upon the premises of an adjoining landowner, cannot escape liability on the ground that such landowner might, at a small expense, have prevented any damage by digging a ditch on his own land that would have carried off the waste water." McCarty v. Canal Co., 10 P. 623, and cases there cited; Black, Pom. Water Rights, § 197. The court was asked to instruct the jury that, if the injury was caused solely by seepage, filtering, or percolation, defendant was not liable. All of the testimony showed that the seepage of water from defendant's ditch was the cause of the damage. In such case defendant's...