Smith v. Big Lost River Irr. Dist.

• Decision Date: 30 June 1961
• Docket Number: No. 8966,8966
• Citation: 83 Idaho 374,364 P.2d 146
• Court: Idaho Supreme Court
• Parties: Lot SMITH & Karl Smith, Plaintiffs-Respondents, v. BIG LOST RIVER IRRIGATION DISTRICT, Defendant-Appellant.

Page 146

364 P.2d 146

83 Idaho 374

Lot SMITH & Karl Smith, Plaintiffs-Respondents, v. BIG LOST RIVER IRRIGATION DISTRICT, Defendant-Appellant.

No. 8966.

Supreme Court of Idaho.

June 30, 1961.

Rehearing Denied Sept. 8, 1961.

Robert M. Kerr, Jr., Blackfoot, George Barnard, Idaho Falls, for appellant.

Furey & Furey, Sherman F. Furey, Jr., Salmon, and Jack B. Furey, Challis, Robert H. Copple, Boise, for respondents.

KNUDSON, Justice.

Four separate cases are involved in this appeal. Pence v. Big Lost River Irrigation District, 83 Idaho ----, 364 P.2d 158; Donahue v. Big Lost River Irrigation District, 83 Idaho ----, 364 P.2d 158; Johnson v. Big Lost River Irrigation District, 83 Idaho ----, 364 P.2d 159. They have been consolidated for trial and upon this appeal.

The respondents in each case (plaintiffs) seek to recover for damages allegedly caused by appellant, Big Lost River Irrigation District, in the designing, construction, maintenance and operation of an artificial channel in the Big Lost River across part of the area known as the Chilly Sinks in Custer County, Idaho. Each respondent also prays for a permanent injunction by which appellant is enjoined from further acts of altering, changing or tampering with the course, channel or mode of flow in the area above and on respondents' lands.

The Big Lost River rises in the mountainous area known as Copper Basin and flows in a generally northeasterly direction for a distance of approximately six miles where it is crossed by what is known as the Chilly Bridge. Within a short distance of said bridge the river changes its course to a generally southeasterly direction. For a considerable distance upstream from the Chilly Bridge and to about a quarter mile downstream from that bridge the river flows generally in a single channel. From a point approximately one-quarter of a mile below said bridge and extending downstream for a distance of between one and one-half and two miles there exists an area of the Chilly Sinks where the surface is made up of coarse and loose gravel where the river in its natural state lost a substantial part of its flow by seepage and percolation into the deep permeable underlying gravel. The artificial channel here involved was constructed across this area.

The artificial channel has a base width of 70 ft. and a top width of 80 ft. It is constructed chiefly of the surface gravel material and less than one-half of its base lies below the adjacent normal ground surface. Its alignment is substantially straight, generally following one of the several natural channels in that area. A number of concrete drop structures, some with downstream concrete aprons on the floor and banks, were constructed in the channel to reduce water velocities and minimize erosion. There are no headgates or other control structures at the upper end of the channel to permit control of the amount of water entering the channel. Construction of the channel occurred in 1937 and 1938 and appellant has had and exercised control and maintenance of it since its construction.

Prior to construction of the artificial channel the normal watercourse of the river as it entered that area was in one main channel and many subordinate channels referred to as 'finger' channels. At the lower end of the gravelly area known as Chilly Sinks the surface flow of the river becomes more concentrated in the main channel and what is known as the back channel and flows across the property of the respondents to the Mackay Reservoir which constitutes the main water supply for appellant district. Said reservoir is situate approximately nine air-line miles southeasterly of the downstream end of the artificial channel and respondents' ranches are situate along approximately the middle five miles of that distance.

The damages claimed by respondents allegedly occurred during the calendar years 1955, 1956, 1957 and 1958 as a result of the construction, maintenance and operation of the artificial channel, the effects of which were to

1. Divert and confine most of the flow of the Big Lost River in the Chilly Sinks area to a single artificial channel rather than allowing it to flow in its many natural water courses.

2. Decrease the area of natural channel gravels wetted during high river flows, resulting in a decrease of natural percolation of flood waters into underground storage.

3. Increase both the volume of surface runoff and the magnitude of peak discharge of the river below the artificial channel as a result of this reduction in groundwater storage.

4. Increase the normal load of gravel and debris in the river below the channel.

5. Produce rapid flooding of adjacent and downstream areas caused by failure of the artificial channel during peak flow conditions.

6. Aggravate conditions of both erosion and deposition that would not have otherwise occurred without the artificial channel.

The damages claimed in each action are not identical, however the principal damages allegedly resulting from the acts of appellant are:

(1) portions of respondents' crop and pasture lands have been eroded, washed away and destroyed;

(2) deposits of gravel, sand, silt and debris upon respondents' crop and pasture lands;

(3) destruction of respondents' irrigation diversion, installations and outlets from the river;

(4) destruction of headgates, surface irrigation ditches, fences and improvements on respondents' premises;

(5) respondents were compelled to build dikes and protective works and to change roadways, fence lines, river crossings, irrigation systems and procedure.

At the close of the trial and on June 2, 1959, separate verdicts were rendered awarding damages to each of respondents and judgments thereon regularly entered. On June 11, appellant filed, in each case, a motion for judgment notwithstanding the verdict and in the alternative to grant a new trial, which motion was denied on August 3, 1959. On June 19, 1959, the trial court entered an 'Order of Injunction' enjoining the appellant 'from reconstructing any artificial channel across this said area of less than a permanent, well-constructed material of non-erosive nature, and that said channel be constructed of sufficient depth and width to carry all waters decreed to the Big Lost River Irrigation District and that proper gates and controls be established at the head of said channel which can turn all excess water above such decreed right away from said artificial channel so that said water can be absorbed by the Sinks area as it has been absorbed prior to the original building of such artificial channel'.

These appeals are from the judgment, order of injunction and order denying new trial in each of said cases.

Assignments of error No. 1 and No. 2 challenge the sufficiency of the complaint and the pre-trial rulings of the court relative to demurrers, interrogatories, demands to make more definite and certain and to furnish additional bill of particulars. The complaints, each consisting of approximately 12 typewritten pages, in substance allege that appellant constructed, maintained and operated an artificial channel in a portion of the natural course of the Big Lost River some distance upstream from respondents' property resulting in increasing the volume and velocity of water flowing across respondents' lands, causing damage in various ways.

It has long been the law of this state that one who diverts water from its natural channel and undertakes to convey the same by means of an artificial channel or canal, is liable for the exercise of reasonable care and diligence in so doing and is required to take such precautions as to prevent injury to others. In Mashburn v. St. Joe Improvement Co., 19 Idaho 30, 113 P. 92, 95, 35 L.R.A.,N.S., 824, this Court said:

'It would not be proper or lawful, however, for an individual or corporation, whether acting under a franchise from the state or not, to so increase the flow of a stream by splash dams or otherwise as to overflow, flood, and damage the lands of a riparian proprietor, * * *'

This Court, in the above cited case, also quoted the rule announced in Axtell v. Northern Pac. Ry. Co., 9 Idaho 392, 74 P. 1075:

'One who by his wrongful acts augments, diverts, or accelerates the forces of nature in such a manner as to injure another is liable for damages therefor.'

In Fischer v. Davis, 19 Idaho 493, 116 P. 412, 413, this Court said:

'* * * a riparian owner of lands abutting upon a stream has no right to place obstructions out into the stream for the purpose of changing the natural course of the river, or for any other purpose that would do damage to a riparian owner on the opposite side, or to owners of land abutting upon said stream either above or below; * * *'

A pertinent statute of long standing in this state is I.C. § 42-1204, which provides:

'The owners or constructors of ditches, canals, works or other aqueducts, and their successors in interest, using and employing the same to convey the waters of any stream or spring, whether the said ditches, canals, works or aqueducts be upon the lands owned or claimed by them, or upon other lands, must carefully keep and maintain the same, and the embankments, flumes or other conduits, by which such waters are or may be conducted, in good repair and condition, so as not to damage or in any way injure the property or premises of others.'

The generally accepted applicable rule is stated in 56 Am.Jur. 505, Waters § 14, as follows:

'It is established, however, that the ordinary or natural course of water cannot lawfully be changed for the benefit of one person or class of persons to the injury of another. Accordingly, one who changes the course of a stream must do so in such manner as not to injure, or unduly interfere with the rights of, the adjoining proprietor, either above or below, or on the opposite side of the stream. Thus, he must not, by changing the direction of the flow of the stream, so increase or diminish its velocity as to cause...