48 Colo. 12 | Colo. | 1910
delivered the opinion of the court:
Appellees, as plaintiffs, brought this suit against appellants to recover damages to their crops, caused
The complaint, in substance, alleges: that defendants in November, 1903, constructed a wooden dam or check in, and across, said river; at a point about sixty feet below the headgate of Canal No. 3; that during the spring of 1905 defendants negligently allowed sand, silt and the debris from the river to accumulate in said canal and heádgate thereof; that about the 5th day of June, 1905, the defendants negligently allowed said dam or check to remain in the river during a rise of the water, neither raising nor lowering it; that on.account of said accumulation of sand and debris, and on account .of not properly handling or regulating said check or dam, the defendants caused the water in the river to back up- and overflow its banks in and upon plaintiffs’ property to their damage; that said water would not have escaped its river banks, but would have remained therein, without harm' to the plaintiffs, if said sand, silt- and debris had been properly removed, or said check or dam raised or lowered in the river.
The answer, after admitting certain allegations of the complaint, alleges, in substance: that in 1870, while the land owned by plaintiffs was a part of the public domain, the assignors of defendants constructed a dam across the river at substantially the same point, and of the same height, and for the same purpose as the dam or check of which complaint is made; that from time to time said dam was repaired and reconstructed,'and such was the work done thereon in November, 1903; that the dam as repaired and reconstructed, with flash-boards thereon, was no
In 1870 the defendants, or their predecessors in interest, built a dam of dirt, gravel and brush, commonly known as a “brush dam,” across the river at a point about sixty feet below the headgate of Canal No. 3, for the purpose of diverting therein the water
In November, 1903, the piles forming the basis -of the dam constructed in 1883, were sawed off, and an apron or floor was constructed thereon, which consists of plank three inches thick and twelve feet long; above the apron .is a structure made of 8"x 8" timbers about twelve feet in length, set five or six feet apart, at an angle of about 45° down stream; on each timber in the center is a 2"x 2" board, and on that a 2"x 8" cleat, forming a slot or groove, into which boards, so made as to slide up or down, are placed, forming the face of the dam. These sliding-boards are commonly known as “flash-boards” and in operating- this dam, as well as the one built in 1883, it was the intention and custom to take out, remove, lower or raise these flash-boards during flood times, in order to allow a freer passage of the water in the river. The dam is supplied with a sand chute about fifteen feet in width, operated for the purpose of keeping the headgate and ditch from choking up with sand. The sand chute was not operated in 1904, and a sandbar filled in above the dam in the ditch, and in front of the headgate. It was about 130 feet long, 30 to 40 feet wide, 1| feet in depth, and extended about 40 feet past the headgate. It was two-thirds larger than any sandbar previously there. It so remained in 1905, at the time plaintiffs ’ crops were destroyed, extending into the ditch, between the headgate and the weir. When the high water that damaged plaintiffs came, the flash-boards
At the close of the evidence, the court took from the consideration of the jury the third alleged defense, and instructed them, in effect, that if plaintiffs were injured as alleged in the complaint, their cause of action accrued at the time the damages were sustained, to wit: in June, 1905, and was not barred by the statute of limitations. The action of the court in this respect is urged as constituting reversible error. It is contended, that this defense involved two propositions; first, “that the plaintiffs purchased their lands with full knowledge of the rights of defendants in and to said dam and ditch, and the nature and extent of said appliances as existing structures, and the effect of the use and operation thereof upon said lands”; and, second, “the defense of the statute of limitations. ’ ’ All the matters contained in the third alleged defense, except solely the statute of limitations, were covered and plead in each of the two preceding defenses, and were therein fully submitted to the jury. Moreover, it is quite evident the pleader never intended to present, by the third defense, nor did the court, or jury, understand, that thereby there was presented any defense other than the statute of limitations. Plaintiffs’ cause of action accrued when
Defendants contend, that under the facts of the case, and by virtue of §§ 2339 and 2340, Bev. Stats, of the United States, and by the reservations in the patents to the land of plaintiffs, the former acquired, and still have, the right to maintain a permanent dam of the elevation originally constructed, and that the court ignored such right by refusal to give instruction No. 6 requested by them. We think that the instruction requested was fully covered by other instructions given, and the matters of defense plead, were fairly submitted to the jury.
It is, perhaps, true that defendants had a right to maintain a dam across the river at substantially the. same place and of the same height, and which set back the water in the river to the same extent as the dam originally constructed and maintained, and-plaintiffs acquired their land subject to such right, and could not recover for an injury sustained by them by reason of the fact of such dam. To this effect the court instructed the jury. The defendants, however, had no right to rebuild, and maintain a new dam in such a way as to place a greater servitude or burden upon the property of plaintiffs than had been put upon it by the construction and maintenance of the previous dams, and the jury were so advised.
They were, in effect, told, that defendants had a right to maintain a dam across the river for the purpose of diverting water into their ditch, and that plaintiffs acquired their lands subject to the defendants ’ right to have the dam maintained at its original height, and, if the dam “had since been always maintained at said height,” plaintiffs could not recover
It is argued that these instructions are erroneous in that they require, in order to invest defendants with an easement in plaintiffs’ lands that would relieve the former from damages to the latter, that the
The jury were not told, as defendants contend, .that, “if the brush dam washed out during flood times, no easement could be established. ’ ’ On the contrary, it was left to the jury to determine whether the dam was originally built of dirt, brush and like material, and whether it washed out during flood
The court in defining “an extraordinary flood” told the jury that it “means one of the heaviest that ever occurred in the locality, ’ ’ and it is claimed that this was erroneous. Certainly an “extraordinary flood” is one of the heaviest that ever occurred in the locality. If there were many such, they would cease to be extraordinary, and become only ordinary. But should we assume that the particular words are improperly used as applied, yet it is clearly evident from the entire instructions, that the jury were not misled thereby. In the preceding instruction they were told that if they believed from the evidence that the river overflowed its banks by reason of an extraordinary flood of water or freshet coming down the river, and which it was not capable of carrying within its banks, and was not occasioned by the dam of defendants, plaintiffs could not recover. And in the instruction in which the alleged objectionable words were used, the jury were told that “defendants
Defendants requested, and the court refused, an instruction to the effect that, if the overflow of the river, which resulted in the damage to plaintiffs, was caused “by reason of certain islands and sandbars in the river above or below said dam, and the bushes, trees, driftwood and debris collected thereon, * * * or for any cause other than the dam of defendants, ’ ’ plaintiffs could not recover, and it is alleged that the action of the court in this behalf constitutes reversible error. It will be observed that the requested instruction includes ‘ ‘ the sandbars ’ ’ in the river above said dam. That is sufficient, without more, to justify the action of the court in refusing to give the instruction. The sandbars in the river above the dam were alleged to have been caused by the negligent operation or failure to operate, the dam on the part of defendants. It constituted one of the elements of plaintiffs ’ cause of action, and the evidence tended to support the allegation. The instruction requested contained a material erroneous proposition, and the refusal to give it was proper. — Blackmore v. Neale, 15 Col. App. 49.
Moreover, it appears that all that was applicable and proper in the instruction refused was fully embraced in, and covered by, instruction No. 6 of the court’s charge. While the court therein did not specifically mention sandbars, brush, trees, driftwood, rubbish, etc., it told the jury that, if they found from the evidence “that said overflow upon plaintiffs’ land, if any, was caused * * * by obstructions
The contention of defendants was, that they had, and maintained a permanent dam, and had so maintained it for thirty-five years, while the contention of plaintiffs was, that the original dam constructed and maintained by defendants and their predecessors was of such material that it would readily wash out and not overflow the river; that the dain of 1883 built in its stead was supplied with flash-boards that were operated in such manner as to prevent the overflow of the river and consequent injury to adjoining lands, and that the dam constructed in 1903 was likewise built with flash-boards, but that defendants carelessly and negligently failed to properly handle or regulate the dam. Each side supported their respective contentions with evidence. The charge given by the court, fully and fairly presented to the jury, for their determination, all the material issues in the case. 'The jury were evidently more impressed with the evidence upon the part of plaintiffs, and found accordingly. We cannot interfere with their verdict, there being ample evidence to sustain it.
It is urged that the refusal of the court to permit the jury to visit and view the premises was- prejudicial to the rights of the defendants. Sec. 188, Mills’ Ann. Code, places the matter complained of entirely within the discretion of the court, and settles the matter against the contention of defendants.— Saint v. Guerrerio, 17 Colo. 448.
The motion for a new trial set forth, as one of the grounds thereof, “that the verdict was a chance or quotient verdict. ’ ’ Affidavits of two of the jurors
But if the converse of this were true, defendants are in no position to urge the matter here. Neither the motion nor the affidavits filed therewith, in support thereof, or in opposition thereto, were embodied in the hill of exceptions, and, therefore, are not properly a part of the record. While sec. 60, Mills’ Ann. Code, makes certain motions, and rulings or decisions thereon, part of the record, without making the same such by a bill of exceptions, it does not extend the rule to the matters here involved, and we are precluded from considering them.—Rutter et al. v. Shumway, 16 Colo. 95; Servant v. McCampbell, 46 Colo. 292, 299; Jordan v. People, 19 Colo. 417, 423.
Chief Justice Steele and Mr. Justice Bailey concur.