16 Mont. 335 | Mont. | 1895
The plaintiff, a ranchman living on Griff creek, sues the defendants for negligently constructing and maintaining a dam used to store quantities of water at the outlet of Griff Lake, about 4£ miles above plaintiff’s ranch. In June, 1892, the dam broke away, and the body of water behind it ran down upon plaintiff’s farm, washing away the soil, destroying the buildings, tearing up his fences and crops, and
The defendants do not contend in this court that the plaintiff was not injured by the breaking away of the dam, nor is there any question raised of the justness of the amount awarded, provided the plaintiff could recover at all, so that we need only consider the single point presented — whether the verdict of the jury is against the law.
The court, after charging the jury upon the law of negligence, and as to the measure of care necessary to be exercised on the part of defendants, instructed as follows: “The jury are instructed that the plaintiff had a right, without incurring liability for trespass, under the laws of the state of Montana, to have said dam examined and declared a nuisance, and to have had the same abated, without costs to him, if the same was dangerous to life or property by reason of its negligent construction, or any other defect therein, whereby the same was unsafe or dangerous to life or property situate or being upon the stream below it. And if you believe from the evidence in this case that the plaintiff, for a year, or a longer period, immediately prior to the breaking of said dam, had the opportunity to know that said dam was in a dangerous and unsafe condition, and that he believed it was dangerous and unsafe, then it was his duty, as an ordinarily careful, prudent, and discreet man, to have invoked the law of the state, and have had said dam examined, and, if found unsafe, to have had it removed, or the nuisance abated, so as to prevent said injury and damages to his property, as the law makes it the duty of a person who has the means or opportunity of avoiding an injury, without committing a trespass upon the property of another, to take the proper measures to abate the nuisance and prevent the threatened injury and damages, and if he fails to do so he is guilty of contributory negligence, and cannot recover. ’ ’
The law of the state referred to in the instruction is the act
It is admitted that plaintiff did not institute any proceeding, under this statute or otherwise, to have the dam declared dangerous, or a nuisance to the public. The jury, therefore, by finding for the plaintiff, utterly disregarded the particular instruction quoted above.
In passing upon the motion for a new trial, however, the learned judge of the district court permitted the verdict to stand, entirely changing his view of the law as given in the first instance, thereby holding that an omission to invoke the aid of the statutory right to have the safety of the dam inquired into by judicial proceeding was not an act of negligence on plaintiff’s part, which so far (if at all) contributed to the overflow of his farm as to preclude him from obtaining relief in this action.
The appellants do not ask the court to reverse the case upon the question of practice,- — that because the jury confessedly disregarded the law as given to them by the court, whether right or wrong, a new trial should be had, — but rely upon the ground that the instruction, as given, was the law, and that the jury, under the plain facts in evidence, disobeyed the law when they awarded plaintiff damages, it being an undisputed fact that he had never complied with the provisions of the statute authorizing complaint to be made before the district court. But it appears clear to us that the statutes which authorized proceedings to have a dam examined, to determine its safety or danger, and to try that issue, simply declare a permission and right, and prescribe how the same may be availed of, without imposing any legal duty whatever. (Texas, etc., Railroad Co. v. Young, 60 Tex. 201.) Surely, to maintain a dam which imperils the safety of many people is a nuisance; hence the right to have the same abated was in the plaintiff, whether conferred by statutory authority or by the common law. (Wood on Nuisance, § 3; Mayor, etc., v. Bailey, 2 Denio 433.).
It is beyond dispute that defendants were in duty bound to use all reasonable care to maintain their dam in a safe and suitable condition with relation to its uses and to the safety of life and property of others below them on the creek. (Angel on Water Courses, § 336; Cooley, Torts, p. 570; Gray v.
Plaintiff did all that could be reasonably expected of him. He notified the defendants of the condition of their dam. He had a perfect right to live upon the creek, and it would be highly unreasonable to require him to repair a defectively constructed dam belonging to others, and for the defectiveness of which he was in no wise responsible. It would likewise be a bad precedent to exonerate the defendants, otherwise clearly negligent, because a settler below them did not avail himself of the statutes quoted, which, as we have said, were a permission expressly accorded to him, but certainly never were intended to shield those who were careless from liability in damages for the consequences of negligently maintaining a fearful danger to those lawfully occupying their homes below the point of such danger.
These views render it unnecessary to discuss principles which might be applicable if plaintiff was a transgressor himself, seeking to hold defendants liable for their negligent acts. The judgment is affirmed.
Affirmed.