75 Colo. 513 | Colo. | 1924
delivered the opinion of the court.
Emerson brought suit against the company, plaintiff in error, for damages caused to his land by the breaking of the defendant’s réservoir. He had a verdict and judgment and the company brings error.
No negligence on the part of the defendant was proved at the trial. There was a claim that a reservoir above that of the defendant, owned by third parties, by the negligence of its owners burst and caused a flood that broke the dam of the defendant and thus caused the injury. The instructions ignored the lack of negligence in defendant and the claim of negligence in the upper owners.
The question before us is whether the statute (C. L. § 1684), places an absolute liability upon reservoir owners.
It is as follows: “The owners of the reservoirs shall be liable for all damages arising from leakage or overflow of the waters therefrom or by floods caused by breaking of the embankments of such reservoirs.”
This court has held that the statute is imperative (Garnet Ditch and Reservoir Co. v. Sampson, 48 Colo. 285, 110 Pac. 79, 1136), and we think that that construction of the statute is right, and that the reservoir owner is liable for damages caused as therein stated whether he is negligent or not and whether the breaking of his dam was caused by the negligence of a third person or not. If the statute does not make him so liable what does it do? - Everybody is liable for his own negligence anyhow. If, then, we say it makes him liable only for his negligence we make it vain. If we make an exception of the case of the tortious act of a third person we import that into the statute. The questions of act of God or the public enemy are not before us. The
The judgment is affirmed.
Mr. Justice Campbell not participating.
Mr. Chief Justice Teller and Mr. Justice Sheafor dissent.