Plaintiff in error is a ditch corporation engaged in diverting water, and conducting it upon or to the neighborhood of lands of its stockholders for irrigation. For the purpose of conveying the, water across certain lands of the defendant in error, it employed and adopted, as part of its ditch, a natural depression, draw, or gulch situated on said lands, through which it was unnecessary to resort to excavation, although, as we understand the testimony, the defendant in error, who was a stockholder in the company, had plowed for his own advantage, or caused to be plowed, a few furrows to confine the water, and prevent its spreading, as it threatened to do, over more land in width than was desirable. The water is turned loose into said draw or gulch at a point near the place where it enters the lands of defendant in error, and follows it for a distance of fourteen hundred feet, where it is recaptured in a ditch constructed for that purpose. 3ft is carried in that ditch upon said lands until another draw or gulch is reached, where it is again turned loose, and discharged into said second draw, down which it flows until it passes off from the lands of defendant in error. In some instances the witnesses testifying by reference to a certain map before them, and which is in the re.cord, pointed out or indicated the locations and directions, accompanying their signs' by such expressions as ‘ ‘ here ’ ’ and 1 ‘ there. ’ ’ Their testimony was evidently made clear to the counsel and the trial court; but the mere words of the record convey but little intelligence of the precise localities which they referred to or described, for unfortunately, their signs' and finger indications are not preserved in the record, and they are left unexplained. We
The fall down and along the fourteen hundred feet where the water is first turned loose upon the lands.in question is about sixty feet, ranging from three feet and eight inches to six feet and eleven inches to each one hundred feet. Through the second draw or gulch we understand the fall to be greater than that.
"Where the water is turned loose as aforesaid, no effort was made to confine the water or direct its 'flow, except as already stated, by the plowing of a few furrows to prevent its spreading. No contrivance was provided or employed to reduce the natural tendency of the water to cut into and wash away the soil. It did, in fact, by constant washing of the soil, cut deep channels for itself along said ravines or gulches. The map in the record indicates that through the first fourteen hundred feet where the water was allowed to run without artificial restraint, the washing was from four to eight feet, and through the second ravine, from six to twenty feet; but whether the figures are intended to disclose the width or depth of the washing or cutting, is not manifest. The defendant in error, however, testified as follows concerning the cutting along the said fourteen hundred feet draw:
“Well, there was a cut right across that forty (acres)' fourteen hundred feet, that was from six to ten feet deep.” Q. “ And how wide ? ” A. “ Why, it was the most of it from or more than four or five feet wide.” Q. “ And how is it at the bottom of the ditch? ” A. “There is about two hundred feet in the middle of it from twenty-five to thirty feet wide caved in in the center along about the middle of this ditch, washed out. From there up to the northwest line about probably half the distance, it is about ten feet deep, and narrow so that a man can jump across it in some places.”
The excavations or washouts thus caused by the action of the water were not separated from the rest of the field by a fence or other inclosure, nor were any barriers erected to prevent animals from approaching and falling into them. The lands of defendant in error were inclosed and used by him as a winter pasture for some of his live stock; and certain of his horses and cattle were killed by falling into the excavation made as aforesaid in that portion of the conduit referred to as the fourteen hundred feet strip, or the draw where the waters are first discharged upon the lands.
This action was instituted by the defendant in error to recover the damages sustained by him by reason of the injury to his lands resulting from the washing away of the soil, and the loss of said horses and cattle.
The cause was tried to the court without a jury, and the findings were against the right of recovery for the alleged damage to the lands, but sustained the claim made, in part at least, for the loss of the live stock, and judgment was rendered in favor of defendant in error for the sum of one hundred and thirty dollars. • The court found that the plaintiff in error had the right to maintain its ditch over and across the said lands, and that such right had accrued prior to the occupation of and entry of the lands by defendant in error; said lands anterior to such occupation and entry having been public lands of the United States. The ditch company prosecuted error and complains particularly of the third finding, which was as follows:
‘ ‘ The court further finds that the defendant has main*543 tained its said ditch across the lands of the plaintiff, and that, at the time of the commencement of this action, the water flowing in defendant’s ditch had sq cut the lands of plaintiff as to render the possession and enjoyment of the plaintiff dangerous to the stock of plaintiff, that defendant negligently left the said ditch unprotected, so that the stock of plaintiff, described in the petition, fell into said ditch and were destroyed, and that said property was of the value of $130, and the defendant is liable, because^ of its negligence in not protecting said ditch from the encroachment of plaintiff’s stock, by fence or other adequat' means, for the damages so sustained.”
There is sufficient evidence to support the finding so far as it relates to the facts. The only question to be determined is the legal one whether, under the circumstances, the plaintiff in error is liable for the damages found to have been sustained by the defendant in error on account of the loss of his live stock.
There can be no doubt that the excavations resulting from the water discharged upon the land and conducted across it, were dangerous to cattle and horses within their vicinity. The question with which the court is confronted is whether it was the duty of the owner of the ditch and right of way to guard the dangerous locality, and to provide reasonably adequate means to prevent the approach of the land owner’s stock, and thus to obviate the danger of such stock falling into the excavations, or whether that obligation rested upon the owner of the lands across which the waters were conveyed.
In the consideration of that question, the fact, if it be a fact, that the right of way was secured prior to the acquirement of the land by the defendant in error, is not, in our opinion, material. Richardson v. Kerr, 34 Cal., 63.
The plaintiff in error had acquired a right of way over the lands for certain purposes, and for those purposes, and such as are reasonably connected therewith only. It might enter upon the lands in a reasonable manner to repair its works, and probably to attend to such other
Upon the principle that one erecting and maintaining a canal along the line/of another’s lands is liable for any damage resulting from a want of proper care in the management of the same, or- for want of proper care in its construction, a canal company was held liable in damage for the flooding of the houses and barns of a land owner, and the loss thereby of grain, hay, fruit, etc., and'injury to household furniture; where the flooding was occasioned by the water from melting snows and rains being impeded in its flow away off the land of complainant on account of the embankments of the ditch of the Canal Company, the latter having neglected to employ adequate means to prevent such a result. Arrave v. Idaho Canal Co., 46 Pac., 1024 (Idaho).
It is an old and familiar maxim that one must so use his own property as not to injure that of other persons,- — sio utere tuo ut alienum non laedas,• — ■ and, in our opinion,
It is, no doubt, in recognition of a somewhat kindred idea of justice that the law which has now become matter of statutory declaration enjoins upon the ditch owner the duty of carefully maintaining the embankments of the ditch so that the waters may not flood or damage the premises of others, and imposes upon him a liability for all damages accruing to the person or persons owning or claiming the land, over which the ditch may be located, in consequence of the construction, keeping up and using the ditch. Rev. Stat. of 1899, Secs. 897, 901.
In Wood on Nuisances, at Section 134, it is said: “When a person is authorized to do an act upon another’s premises the natural effect of which is to endanger the lives and property of those giving the authority, the person so authorized to do the act is bound to provide and maintain all suitable and proper safeguards against injurious results therefrom. The law presumes that the authority given is coupled with that condition.” According to the finding af the trial court the right of way was obtained over the
In Joseph v. Ager (Cal.), 41 Pac., 422, it is said:
“The dominant owner’s encroachments can be justified only to the extent of his easement. As to all beyond that his acts constitute a private nuisance, for which an action may be maintained. With regard, therefore, to all artificial easements, he is bound to keep his works in such a state that they will cause, no incumbrance to his neighbor beyond that warranted by the easement; and if he neglects this, he brings himself within the ordinary case of a violation of the rule, sic utere tuo ut alienum non laedas, and is of course liable to an action.”
A case which quite clearly approaches the one at bar in principle is Williams v. Groucott, 4 Best & Smith, 148 (116 Eng. Com. L.), where it was held that a person entitled to the minerals under the land of another with license to make a mine-shaft opening into it, is, in the absence of a stipulation to the contrary, under a legal obligation to the owner of the surface soil to fence the shaft so as to prevent its being a source of danger to his cattle which may be upon it; and is liable to an action for injury accruing to those cattle for want of such fencing. See also, Sybray v. White, 1 M. & W., 435.
It seems that two of the animals fell into the ditch during a snowstorm, and the inference is drawn, and prob
A defendant is not liable, as a general rule, for anything beyond the natural, ordinary, and reasonable consequences of his conduct. 1 Sutherland on Damages, p. 57. We do not deem it necessary to extend the discussion of this question further than to say that it is clear that the result might reasonably .have been foreseen as probable. Storms are liable to occur. They are natural and not extraordinary. It is just such exigencies that require barriers to be erected to keep cattle from getting into a dangerous place. The washout and the failure to provide the proper safeguards is to be considered, in our opinion, as the cause of the loss of the cattle and the damage was not so remote as to exonerate the plaintiffs in error from liability. /
The judgment was entered as follows: “Wherefore it is by the court considered and adjudged that the plaintiffs have and recover judgment against the said defendant in the sum of $130, his damages so as aforesaid sustained and the costs of this action taxed at $-.” It is contended by counsel for plaintiff in error that the judgment is void as to the costs, for the reason that a blank appears where the amount of the costs should have been inserted.
The costs are under our practice, taxed by the clerk. Under the statute as existing prior .to 1890 a specific fee was fixed to be collected by the clerk for that service. They may not be and are not, generally at least, ascertained at the time judgment is rendered, or even when it is entered upon the journal. Generally, the costs follow the judgment as án incident thereof; and it would be sufficient in a judgment, to say, “and his costs in this behalf laid out and expended, ’ ’ or words of similar import, without stating or attempting to state the amount. The judgment is for the “ costs of this action.” The amount
In Clippinger v. Ingram, supra, the judgment entry was similar to that in the case at bar. The court said: ‘ ‘ It will be seen that the costs of this case have not yet been taxed, and the judgment with reference to the amount thereof is left blank. It would seem that the plaintiff in error has fears that the costs may be taxed erroneously. We presume, however, .that they will be taxed correctly. The judgment will certainly authorize a correct taxation of the costs. If, however, the clerk should tax them erroneously, the court would undoubtedly correct the' taxation on motion.” The judgment was affirmed notwithstanding the character of the judgment entry.
In Frankel v. Ry. Co., supra, the supreme court of Iowa said: “Defendants’ counsel insists that there was no judgment for costs in the circuit court. In each case the record shows an entry in the words, ‘ Judgment for costs, taxed at $-. ’ This is the uniform practice of entering judgments. Probably it is usual for the amount of the costs to be entered after the term, when the clerk finds time to tax them. But the judgment is for the costs, which the clerk is authorized to tax at any time he may fill the blank. The costs are often retaxed when the amount, even should the blank bave been filled, could be changed. ’ ’
Counsel for the plaintiff in error relies upon the case of Mosher v. Board of County Commissioners, 2 Wyo., 443. That case, however, is easily distinguished from the one now before us — there the only judgment rendered was as
We perceive no error in the record, and the judgment will be affirmed.
Affirmed.