Taylor v. Roosevelt Irr. Dist.
| Decision Date | 30 December 1950 |
| Docket Number | No. 5209,5209 |
| Citation | 226 P.2d 154,71 Ariz. 254 |
| Parties | TAYLOR v. ROOSEVELT IRR. DIST. |
| Court | Arizona Supreme Court |
Shute & Elsing, of Phoenix for appellant.
Kramer, Morrison, Roche & Perry, of Phoenix, for appellee.
This is an appeal from an order and judgment of the Superior Court dismissing appellant's complaint against the appellee, Roosevelt Irrigation District.
George Taylor, deceased husband of this appellant, arranged with David A. Grout, the other defendant herein, who was in charge, control and legal possession of a portion of the Southeast quarter of section 12, Township 1 North, Range 1 East, Maricopa County, Arizona, to pasture certain cattle upon such land. Grout, it is alleged, represented to Taylor that the enclosure was safe, suitable and fit for the purpose of grazing and feeding cattle. Prior to August 15, 1947, and pursuant to agreement, 396 head of cattle were turned into said place.
The appellee Roosevelt Irrigation District maintained a large irrigation canal running through the pasture in question, which was approximately 10 feet in depth by 30 feet in width. The bottom was lined with cement, extending upwards for approximately 5 feet on each side, and the walls from the top were so precipitous that animals falling therein could not climb out.
After said canal was constructed, it was enclosed by a mesh wire fence approximately 4 1/2 feet in height and fastened to wooden posts. In cleaning the canal, it is alleged that appellee negligently burned a number of posts along the fence causing the posts and fence to fall, and that such condition was known to appellee and unknown to appellant.
Thereafter, on or about the night of August 15, 1947, 37 head of appellant's cattle, finding the opening in the fence, and being attracted by the water, went into the canal and were trapped and drowned.
Complaint was filed in the Superior Court by George Taylor against both the landowner and the district, alleging negligence and neglect upon their part and asking for $7,400 damages. Shortly after the filing, he died and his wife was substituted as plaintiff in the said action and thus becoming appellant herein.
From the judgment rendered on January 19, 1949, dismissing appellant's complaint against the district, appeal was taken to this court.
The two assignments of error made by the appellant are as follows:
By the first assignment of error, this court is, in substance asked to determine whether or not irrigation districts, created in pursuance of Chapter 75, A.C.A.1939, are, since the amendment of the Arizona Constitution through the adoption of Article 13, § 7, of such a nature as will render them liable for their torts under any circumstances. This precise question has not as yet, to our knowledge, been ruled upon by this court, and its proper disposal requires a search of our legislative enactments, Constitutional provisions and cases concerning such organizations, in order that we may determine the exact nature of their present existence.
Article 13, § 7 of our Constitution, which became effective in 1940, contains the following: 'Irrigation * * * districts * * * shall be political subdivisions of the state, and vested with all the rights, privileges and benefits, and entitled to the immunities and exemptions granted municipalities and political subdivisions under this Constitution or any law of the state or of the United States; but all such districts shall be exempt from the provisions of sections 7 and 8 of article 9 of this constitution.'
Contention is made by the appellant that districts such as the one involved in this case, are of such a nature as will render them liable, similar to a municipal corporation, for their negligent acts while engaged in proprietary functions.
In arguing conversely, appellee has in its brief, conceded the fact that the precise issue presented herein, is one of first impression to this court. It thereupon would have us believe that we must entirely disregard the holdings by this court in its irrigation district cases because they are not in point. To the extent of our search, we have found no other state having similar laws and constitutional provisions relating to irrigation and improvement districts. We must therefore largely confine our consideration to material gleaned from the language of our own cases in determining the status of districts such as the one at hand. This will necessitate a thorough consideration of all the cases in this state dealing with irrigation districts, in order to obtain a full and accurate interpretation of the meaning of our Constitution and state code.
We find nothing in the language of Article 13, § 7, supra, or any other provision of the Arizona Constitution, which renders irrigation districts immune from liability for their torts, under all circumstances as is argued by the appellee herein. Though designated as political subdivisions in the Constitution, with 'all the rights, privileges and benefits' as well as 'entitled to the immunities and exemptions' of a municipal corporation, it does not mean that they are immune from liability for their torts committed while acting in a proprietary capacity. The rule applicable in this behalf is similar to that applied to municipal corporations generally. Jones v. City of Phoenix, 29 Ariz. 181, 239 P. 1030; 38 Am.Jur., Municipal Corporations, § 572, and cases cited...
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...Maricopa County Municipal Water Conservation Dist. No. 1 v. Warford et ux., 1949, 69 Ariz. 1, 206 P.2d 1168; Taylor v. Roosevelt Irr. Dist., 1950, 71 Ariz. 254, 226 P.2d 154, and the rehearing of the same case, 1951, 72 Ariz. 160, 232 P.2d 107; Rubenstein Const. Co. v. Salt River Proj. Agr.......
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