Willson v. Boise City

• Decision Date: 28 June 1911
• Citation: 20 Idaho 133,117 P. 115
• Parties: EMILIE WILLSON, Respondent, v. BOISE CITY, a Municipal Corporation, Appellant
• Court: Idaho Supreme Court

117 P. 115

20 Idaho 133

EMILIE WILLSON, Respondent, v. BOISE CITY, a Municipal Corporation, Appellant

Supreme Court of Idaho

June 28, 1911

MUNICIPAL PROTECTION OF ARTIFICIAL WATERWAY-LIABILITY FOR NEGLIGENCE-DAMAGES BY FRESHET OR CLOUDBURST-VIS MAJOR.

(Syllabus by the court.)

1. Where a city diverts a stream of water from its natural channel and undertakes to convey the same by means of an artificial channel or canal, it should be held liable for the exercise of reasonable care and diligence in constructing a channel of sufficient size to carry the volume of water that may be reasonably anticipated or expected to flow down the same, and for the maintenance of the same in a reasonably safe condition.

2. A municipality will not be exempt from liability for damages on account of failure to maintain a sufficient artificial channel to carry off the water of a stream that it has diverted from its natural channel, merely on the grounds that the flooding and overflow was caused by an unusually heavy rainfall or cloudburst the like of which has not usually occurred, where it appears that a number of such rainfalls or cloudbursts have occurred in the same locality within the last preceding fifteen or twenty years.

3. A rainfall or cloudburst which has irregularly and infrequently occurred a number of times within the memory of man in a particular locality, and has caused heavy freshets in a particular stream, is a thing that can reasonably be expected to occur again, and is therefore not classed as vis major or the act of God, for which the law of negligence and damages does not hold any human agency responsible.

4. A heavy rainfall or cloudburst and consequent floods unprecedented and so extraordinary as to have been beyond reasonable anticipation, and such as had not been known to occur in the locality for a long series of years, is classed in law as the act of God, and no liability attaches to anyone for the damages done thereby.

APPEAL from the District Court of the Third Judicial District for Ada County. Hon. Fremont Wood, Judge.

Action by plaintiff for damages sustained by reason of the flooding and overflowing of city lots. Judgment for the plaintiff and defendant appealed. Affirmed.

Judgment affirmed. Costs awarded in favor of respondent.

P. E Cavaney, for Appellant.

A municipal corporation, in grading its streets, constructing gutters, sewers and other waterways, need not provide against extraordinary storms, such as are not reasonably to be anticipated, but performs its whole duty if such improvements are carefully constructed on a reasonably sufficient plan, so as to be sufficient for all ordinary seasons. (5 Thomp. Neg sec. 5877; 2 Farnham, 1159.)

Ordinary care and skill does not require the occurrence of cloudbursts to be foreseen or guarded against, though it is known that they have many times happened, and that they will certainly recur. (Central Trust Co. v. Wabash, St. L. & P Co., 57 F. 441.)

Notwithstanding the defendant in this case may have been negligent, still if the storm described in the pleading was of such overwhelming character that it would have produced the injury independently of such negligence of the defendant, in such case the storm would be an intervening agency, which could not have been anticipated, and such agency becomes the proximate cause of the injury complained of by the plaintiff, and plaintiff cannot recover. (Grand Valley Irr. Co. v. Pitzer, 14 Colo. App. 123, 59 P. 420; Siegfried v. St. Bethleham Ch., 27 Pa. S.Ct. 456; Thomas v. Birmingham Canal Co., 49 L. J. Q. B. 851, 45 J. P. 21; Schmidt v. Mitchell, 84 Ill. 195, 25 Am. Rep. 446.)

A municipal corporation is not an insurer, and if it takes reasonable precaution to have the passageway sufficient by the employment of competent engineers, it will not be liable for honest mistake of judgment. (Ross v. Madison, 1 Ind. 281, 48 Am. Dec. 361; Evansville v. Decker, 84 Ind. 325, 43 Am. Rep. 86; Haynes v. Burlington, 38 Vt. 350; 1 Farnham, 361.)

A municipal corporation is not bound to anticipate extraordinary floods, but must provide for that which must reasonably be expected to occur. (Madison v. Ross, 3 Ind. 236, 54 Am. Dec. 481; Evansville v. Decker, 84 Ind. 325, 43 Am. Rep. 86; 1 Farnham on Waters, 362, 363.)

A municipality in constructing and caring for its sewers is bound to use only the care and skill which a reasonably prudent person would exercise. It is not liable for injuries from accidents or acts of God, nor for injuries which are caused by an unprecedented rainstorm or flood. The measure of its liability in this regard is to provide for such floods as may have been reasonably expected, judging from such as have previously occurred, although they may have been at wide and irregular intervals of time. (Willson v. Boise City, 6 Idaho 391, 55 P. 887; Axtell v. Northern P. R. Co., 9 Idaho 392, 74 P. 1075; Lamb v. Licey, 16 Idaho 664, 102 P. 378; Chicago v. Rustin, 99 Ill.App. 47; Haney v. Kansas, 94 Mo. 334, 7 S.W. 417.)

Hawley, Puckett & Hawley, for Respondent.

This court, in a case where the present litigants were the parties, held the city liable for damages caused by the water and sand of Cottonwood creek overflowing the banks of the same flume that is now in question. (Willson v. Boise City, 6 Idaho 395, 55 P. 887.)

This decision, while it needs no support to make it the law of this case, has support in later authorities. (Farnham on Water Rights, pp. 1490, 2569.)

The question of the city's responsibility for Cottonwood flume might be said to be res adjudicata, for while the identical damage is not here concerned that was concerned in the former case referred to, still the main point of responsibility is identical. (Hilton v. Stewart, 15 Idaho 150, 128 Am. St. 48, 96 P. 579, 18 L. R. A., N. S., 886; Elliott v. Porter, 6 Idaho 684, 56 P. 360; Kester v. Schuldt, 11 Idaho 663, 85 P. 974; Shephard v. Coeur d' Alene Lbr. Co., 16 Idaho 292-295, 101 P. 591; Keane v. Pittsburg Lode Min. Co., 17 Idaho 179-192, 105 P. 60.)

One who pleads the act of God must show that his negligence did not contribute as a proximate cause to the act of God relied upon as a defense. (10 Current Law, 1093.)

"One must provide against such acts of God as may be reasonably anticipated, and one may be liable for the results of negligence notwithstanding an act of God concurred in producing them." (Carhart v. State, 115 A.D. 1, 100 N.Y.S. 499; Gulf etc. Co. v. Boyce, 39 Tex. Civ. App. 195, 87 S.W. 399; 10 Current Law, 1025; Mahaffey v. Company, 61 W.Va. 571, 56 S.E. 893, 8 L. R. A., N. S., 1263; Birsch v. Citizens' Elec. Co., 36 Mont. 574, 93 P. 940; Goe v. N. P. R. Co., 30 Wash. 654, 71 P. 182.)

The term "act of God," in its legal sense, applies only to events in nature so extraordinary that the history of the climatic variations and other conditions in the particular locality afford no reasonable warning of them. (Gulf Red Cedar Co. v. Walker, 132 Ala. 553, 31 So. 374; Ryan v. Rogers, 96 Cal. 349, 31 P. 244; Polack v. Pioche, 35 Cal. 416, 95 Am. Dec. 115; Smith v. Western R. R. of Ala. 91 Ala. 455, 24 Am. St. 929, 8 So. 754, 8 L. R. A. 619; Los Angeles Scale etc. Co. v. Los Angeles, 103 Cal. 461, 37 P. 375; Lamb v. Licey, 16 Idaho 664, 102 P. 378; 1 Cyc. 758; Kuhnis v. Lewis River etc. Co., 51 Wash. 196, 98 P. 655.)

Where human agency contributes to the act of God or vis major, then it is no defense. (Benedict Pineapple Co. v. A. C. Line R. Co., 55 Fla. 514, 46 So. 732, 20 L. R. A., N. S., 92; Booker v. Southwest Mo. R. Co., 144 Mo.App. 273, 128 S.W. 1012; St. Louis S.W. R. Co. v. Mackey (Ark.), 129 S.W. 78; Buel v. Chicago R. I. & P. R. Co., 81 Neb. 430, 116 N.W. 299; Kansas City v. King, 65 Kan. 64, 68 P. 1093.)

The burden of proving an unprecedented flood as an act of God is upon the defendant. (Jones v. Seaboard Air Line R. Co., 67 S.C. 181, 45 S.E. 188; 5 Ency. Law, Supp. 30, par. 579.)

Injury and loss can never be attributed to the act of God if in any fair view of the evidence it can be held to be due to the act of man. (Georgia S. & F. R. Co. v. Barfield (Ga.App.), 58 S.E. 236; Richards v. City of Ann Arbor, 152 Mich. 15, 115 N.W. 1047.)

AILSHIE, Presiding J. Sullivan, J., concurs.

OPINION

AILSHIE, Presiding J.

This action was instituted by the plaintiff against Boise City to recover damages caused by flooding and overflowing her property and the property of twenty others whose claims for damages had been assigned to the plaintiff.

It appears that on about the 19th of June, 1909, a heavy rainfall, or what is commonly called a cloudburst, occurred in the foothills east of Boise City and in the vicinity of what is known as Cottonwood canyon. As a result a large body of water collected in the Cottonwood creek and carried a great quantity of sand, gravel and debris down the stream and deposited it on the town lots of the plaintiff and her assignors, doing great damage to the lots and flooding cellars and causing damage to the persons whose lots were flooded. It appears that in the early settlement of Boise City this stream in its natural course flowed down through what is now embraced in the lands of the Boise Barracks, and thence through the center of the present city and in the vicinity of the Capitol Building. This resulted in flooding and overflowing large tracts of land during the high-water season and at times of heavy rainfall and so the city finally concluded to divert the course of the stream from the mouth of the canyon, and accordingly built what is designated as the "Cottonwood flume," carrying the water almost in a southerly direction from the mouth of the canyon to the Boise river. This resulted in diverting the entire flow of the stream from its original course as it formerly left the mouth...