*1 JACOBY, MARGUERITE A. Appellant, and
Plaintiff vs. GILLETTE,
THE TOWN THE OF CITY OF WYO- MING, Municipal Corporation, Respondent. and
Defendant WASSENBERG, T. C. Appellant,
Plaintiff vs. GILLETTE,
THE THE TOWN OF CITY OF WYO MING, Municipal Corporation, Respondent.
Defendant (Nos. 2337; 26th, 1946; 505) 2336 and November 174 Pac. 2d *2 plaintiffs appellants cause sub-
For the Raymond Newcastle, mitted on brief of E. C. Wyo- Wyoming Sheridan, Diefenderfer and R. G. ming. respondents the cause was
For the defendants and Dunlap and Elwood on the brief of Earl submitted Wyoming. Gillette, Anderson, both of *5 OPINION Riner, Justice.
These by two come cases here appeal proceed- direct ings from District Campbell Court of County upon record, having one together been tried to the court jury. litigants through without a All the respec- their stipulated tive counsel have that the causes should be consolidated in purposes including this court for all abstracting, briefing, argument and determination. An appropriate agreeable order has been entered here to stipulation. regards
As liability matter of respondent, of the City The Town of the of Gillette, upon both cases rest specification the same facts. The of errors in each is same, consisting assignments of but may two which up simple be summed appellants claim judgments supported that the are not the evidence contrary opinion suffice, and hence are to law. One will therefore, dispose both cases. may already
As be said, inferred from what has been judgments trial resulted in rendered in favor of the City Town usually of the of Gillette which will herein- “City”, being be after mentioned as the the defend- ant in each case in the appellants, District Court. The Marguerite Jacoby, plaintiff case, A. in one and T. C. Wassenberg, other, plaintiff may be referred to brevity “plaintiffs”. for convenience and as the Wher- necessary, respective ever their surnames will be used. judgments similar, were the court/ finding generally for against the defendant and plaintiffs ordering petition in each case brought against Both dismissed. actions were City damage plaintiffs recover for caused on account ditch or canal constructed of a certain over-flow sundry drainage lands located carry from off waters municipality above corporate limits of the without the par- through A more named, passed them. which but *6 given canal will be description this ditch or of ticular charged in petitions it was plaintiffs’ In hereinafter. “6” that: paragraphs numbered ownership having defendant, and the sole control “the of and duty keeping ditch, plaintiff the of to the owed said that maintaining in a condition the said ditch passage all of permit free and unobstructed the would water running through corporate the limits it within safely carry defendant, all of said water and said overflowing escaping or there- ditch without in said from,” paragraph numbered “7” that: in and defendant, duty wholly its said and unmindful of “the thereof, carelessly disregard negligently and in utter permitted and be be- its ditch maintained come water without said to carry to the in such condition that it failed said escaping entering and therefrom and flowing upon premises plaintiff.” of this the neg- denied “the Defendant’s answers Defendant’s ligence any way in flood or caused the contributed alleged damages” plaintiffs forth set alleged: petitions. These answers also their rain, or flood on or “That the snow that occurred about January, 1943, unprecedented day was an 22nd anticipated could not be and came in amount that such quantities as to be an act of God.” foregoing excerpts pleadings par- from the think, will, supply reasonably we con- ties accurate cept appear- be determined on issues to the facts ing us. in the record before assignments of error were similar
Where above, Willis, described court in Willis vs. those 429, 403, 670, (2d) Wyo. 49 Pac. said that: 48 494 “In this in mind connection it must be borne appellate court must assume that the evidence in favor true, party of the successful leave out of considera- entirely party
tion the evidence of the unsuccessful therewith, give conflict cessful to the evidence of the suc- every party may favorable inference which reasonably fairly drawn from it.” frequently rule been This has referred to and applied here; subsequent decisions see Northwest States 132, Wyo. (2d) Brouillette 51 Utilities Co. vs. 65 Pac. 223; Wyo. (2d) vs. Roelofsz 52 Pac. Branson 70 589; Wyo. 263, (2d), Horton 60 vs. Colbron 150 Pac. Irvine, 309, 157 315; (2d) Wyo. Havens vs. Pac. 570. With this briefly rule in mind we shall review the substance of evidence in this record.
During year Chicago, Burlington & Quincy Railroad Co. constructed a ditch or canal for disposition waters that were diverted a dam 4y2 *7 located about City. of miles southwest the This dam, ditch pursues commences at this northeasterly a point course until grade it reaches a where the permits change land of a direction and from there it northwesterly through follows a City, course the adopts thence a course finally almost east ends in and a natural reservoir site located a mile of about north the length City. The of the ditch from its head to cor- the porate City limits of the is between four and five miles. gate There is concrete a flood a about half mile east of the dam which was constructed as a flood control de- device vice. This has concrete side walls with a steel gate by wheels, flood which is controlled is set in the of the ditch side bank on the down-stream side and by opened must hand. 22, City purchased 1942 the
On Oct. from the Rail- Company portion aforesaid road that of this ditch sit- corporate city uated within limits of said but so far by herein, appears the record outside those limits legal corporate had authorities no of it. control City, corporate sloped Within the limits of the the land consequence, from the south to the north and in apparently north bank of the ditch was lower than the south The bank. water has flowed this ditch “in fine shape” testified, as one witness and carried the flow satisfactorily since construction in 1908 its until Jan. 22, 1943, period thirty-five approximately years. a only exceptions The when overflows from ditch jams. have occurred have been due to ice These ice jams thawing were caused small flows of water from snow which would freeze. Thereafter another thaw in, again would water would ditch set come into the raising ice and would “some the chunks ice get pile up produce crosswise in the sort ditch” and “a City of dam in the ditch and cause it to overflow”. ten has caused and cans thrown removal ashes living vicinity as also into the canal residents in that grew it removed weeds which therein so that has there appreciable were flow of water no obstructions to January here- as it 1943 as came down ditch inafter described. day prior
For a at least to and also on the date last mentioned, very wind, “chinook”, a warm known as prevailed City especially in the water-shed southwest, southeasterly to the south directions therefrom, though testimony was there when thawing City running with water from the melting “out snow north a mile so it was below prior appears zero”. It also to the date aforesaid great city fallen deal of snow had had —“we *8 morning” of ten to twelve inches snow that as one from adjoining territory. witness testified —and The result unusually heavy thawing large of this weather and the prevalent, stated, amount of snow as above that a. was great of flood water came very down the canal ain nothing few hours’ time. In fact like its volume had long by vicinity known been time residents in the for thirty-five years. during some Yet the forenoon of January practically 1943 there no was water in the By commencing 1:00 P. it ditch. o’clock M. was flow day a At P. M. little. 5:30 of that the water flow half surveyor engineering ditch. A filled the witness with training testifying plaintiffs, eleven for years, of some he in stated that saw this water the ditch about that nothing along looking observed it in time but at it then anything any part happening on of excited fear his running At P. the water over to the ditch. 10:30 M. was places in the north at two low bank the side overflowing depth had of This water a three or ditch. point on a inches the lowest this bank with four at twenty-five feet. the was less than Here canal width of fifty-four with foot wide and feet wide a ten bottom deep. were feet These five and two tenths overflows damage plaintiff’s premises for of and the cause the City sought held the to be liable. which Wyoming engineer of licensed State A licensed Surveyor Campbell County of Coun- who had served as during ty twenty years interruptions with for some City he had familiar with been war testified for 1908, his was since it built the ditch spillways in having the concrete constructed father boy assisted in this had witness as ditch this also testified that: work. He was, bulk of the phase it of most unusual “The upper coming ditch between into the water was whereas, ordinarily, you Gillette; can spillway and coming Creek, Donkey regulate and that the flow out through regulate way town. But it all would way that we had no circumstance showed unusual reaches, controlling ume of water that upper it the vol- at the because came in from lower water shed. ground frozen. snow all was The started move once, large at lated measure water that accumu- in the ditch time reached Gillette
497 upper water shed here and controls.” between far went while he Also that as as his observations had go ditch, a down the this one was the seen lot floods largest only time he ever observed one he saw and by jam; except caused an ice it overflow when was carrying least nine tenths of the that the ditch was at city in the area above it water flow that flowed limits. This also witness said that he was familiar during period the three months between October January top 1943 with the ditch bank on the of the thereof, having path, north side it been used as a foot hard, years; beaten down for that there was no unusual depression in ditch bank in “that it runs rather this through length”. cross examination uniform its On unprece- flood was the same witness stated that this any- anticipate that “we had no dented and occasion biggest volume like that” that this was “the think following questions and it flowed since 1908”. given by wit- propounded were to and answers also re-direct examination to-wit: ness on his according map “Q. Spellman, you to this Mr. testified being 10 inches something raise here about there ditch; of the where? in the bottom it, gutters Main Right into come A. where and shale and debris there. It caused a raise of street points. in the ditch at those stuff January Q. or after ten inches there before Was that 22nd? after, up, sounded the because I went That was
A. there. depth water after the flow was Q. when that wasn’t the condition of the ditch Then place? the flood took A. No. Q. humps And those or were caused dams raises carrying flood
that same in shale and washed dirt that off of the streets south and above ditch? say that, I wouldn’t all of it was caused but a
A. large part was. of it Q. great A deal of the ten inches? imagine big part I
A. would of was.” *10 mentioned, having Both the witnesses above had training surveying, agreed peak that at the of the coming there was more water flood down the ditch than hold, plaintiffs answering for it could the witness the by questions put on cross counsel these examination City judge and also trial for the thus: “Q. coming words, there more In other water handling capable down than ditch was at that time?
A. I think so. your be, THE if rest of the bank it would have been I understand answer now to COURT: places up equal low “A” “B” those and were to the practically the same along elevation all great there as the balance of the majority bank, of the that even then the ditch would anyhow? not have held the water Well, A. I doubt it.
Q. your opinion It is it would not? No, A. I don’t think it would.” There testimony is other in the record on behalf of City confirming what given has been above as to the condition of the ditch relative to there- obstructions in, the unusual volume of the flood waters in the ditch surrounding territory. city
When the were officials notified about P. 10:00 night January M. of the concerning serious nature of the flow in the ditch with its con- overflow, sequent they appear to have acted with com- promptness they mendable to do what could to alleviate They immediately the situation. hastened to the flood gate though it will be recalled that this was control — corporate far City without limits of the and not supervision got .open”; they under its it “wide —and dynamite open ditch; also used to break a bank of the corporate and this too was done without limits of City jurisdiction, where it had no and southeast- wardly therefrom, in an endeavor to relieve the volume They subsequently pumped water flow. most of the plaintiffs’ property water flow- out of into which it had damage complaint ed and caused the made. of which additionaly judge It should be trial noted that request litigants accompanied by at the coun- parties inspected premises sel for all “the visited and litigation.” in this seen, charged against negligence As we have City by plaintiffs appears petitions to be in their (1) City’s failure that the ditch was obstructed per- keep would and maintain it in condition that passage water mit the free and of all the unobstructed *11 running through (2) city a limits it within the and keep failure to the ditch so that would and maintain “carry safely over- in said ditch without all said water flowing escaping therefrom”. charge
The appear pure first thus made would to be question question of fact. This the trial court resolved against plaintiffs think, was, the and there and as we by testimony as is disclosed review of the herein- the forth, before set evidence in the record to substantial support finding. such a there little While was some point conflict in the evidence on the the trial court seeing hearing who testified con- the witnesses cerning the matter authorized resolve the con- was City. flict in favor Under rule in the the Willis supra, hardly case we how we can with its see interfere finding respect. in this charge negli- The second gence made as appear stated above would to be mixed question fact, legal query being of law and whether
500 City peril to maintain the canal was hound at its so flowing safely carry in it without all the water as to against e., overflowing City was an insurer i. Concerning that overflow of the water carried. bearing accordingly examine authorities we point. on the Rylands leading English early vs. Fletch-
The case of (1866) the defendants er R. 1 Ex. 265 was one where L. separated from constructed a on land reservoir intervening by under plaintiff’s colliery land. Mines intervening land had site and both reservoir workings previously plaintiff The been worked. intervening legally property and the made in his own underground be- land, communication opened an had workings. colliery Neither and these old tween his had con- employees who any nor of their defendants communications knew that such reservoir structed the workings under existed these old existed or even that person- were not and the defendants site reservoir negligence. fact there ally guilty any a matter of As which shafts reservoir under the were five old shafts was workings. reservoir When led down into the through into filled, broke the water undertaken to be plaintiff’s mines. poured on into these shafts so English Exchequer the defendants held Court judgment damage. This liable for the resultant (1868) R.L. Lords appeal House of to the affirmed on just as an- mentioned case 330. The rule 3 H. L. R. 1 Ex. Blackburn, p. of L. at J. nounced supra is that: brings his purposes own person for his “The who likely anything keeps there and collects and lands *12 peril, keep it in at his if must escapes, do mischief and, all so, for prima facie answerable is if he does not do consequence damage its of the which the natural
escape.’’ great judge immedi- But said in the sentence also ately following excerpt given: the above “He ex- can by showing owing escape cuse himself that the was default; plaintiff’s perhaps escape the or that the consequence major the of vis or the act of God.” judge This dictum of learned was transmuted by into law the decision in Nichols vs. L. R. Marsland 10 Ex. 255 and the rule established that the decision in Rylands inapplicable case aforesaid was where the injury by major” is caused “vis the “act God” generally regarded interchangeable which are as terms. In that case the defendant was the owner of certain pools damming by artificial formed natural stream by finally escape into which the water was allowed to system accompany- means of weirs. The rainfall ing extremely through an violent ac- thunder storm pressure cumulated broke embankments and the away rush of water down the stream carried four bridges plaintiff’s adjoining respect property damage brought. which no action was There was negligence in the construction of these or dams. weirs jury having negligence found that there was no damage, reasonably and that could not have been anticipated, damage the court held that sued for excusing was caused an “act of God” the defendant liability. from
A subsequently case decided to that last cited appear which would aid also to be of some considerable resolving appearing cases at bar —these stronger even than of Nitro- it as we see them —is that Phosphate etc. Chemical Manure Co. vs. London and Co., St. Katharine Docks 9 Ch. Div. 503 at 515-516 where damage defedants were sued for done an unusually high owing retaining tide to the bank crown their being at docks on the Thames River not sufficient- ly high being for some distance from six ten inches — height four, adjoining below feet dock *13 banks were constructed. The defendant’s docks and year the bank were established in the 1855. From that .year March, passed until 1874 no water had ever over mentioned, question. year in last how- the bank In ever, did come which overflowed the defendant’s a tide damage consequence. bank did of little but ' considering Fry Justice the defendant’s com- Mr. liability mon-law said: that, reached four after the tide had once “it is said again feet, height could which reached that never tide unexpected said to or to be deemed be be so unusual legal ah act of I not God in the sense of the words. do hap- phenomenon think that the has mere fact that a pened once, any import carry when it it does not with when, words, probability of a in other recurrence — imply any it does from which can not law its recurrence places phenomenon opera- be tion of the that out of inferred — regard In rule of law with to the act of God. phenomenon
order that the should fall within that rule not, my opinion, necessary it is unique, that it should be time; happen that it for the it is should first enough extraordinary, it as could not is and such reasonably anticipated. appears me That to to be cases, the view which has been taken in all the and not- ably Lord Justice Mellish in the recent case of Nich- says, speaking ols vs. Marsland. of the flood which He there, jury distinctly found, had occurred not ‘The have only negligence that there was no in the construc- reservoirs, tion or the maintenance of the but that great reasonably flood was so that it could not have been anticipated, although, effect anticipated, if it had been might prevented; have been us and this seems to finding escape in substance a that the of the water was owing served, Pausing there, may to the act God.’ be ob- say thing reasonably that a could not anticipated say have been is to that it is the act of God.” (14th Ed.) In Pollock on Torts 893 it is said: Rylands “the rule v. Fletcher been decided has Appeal damage apply the Court the not to of which immediate cause is act And the act of God. necessarily operation not mean an of natural does God unexpected that no human fore- forces so violent and sight'or It prevented possibly have its effects. skill could enough as human that the accident should be such is foresight reasonably expected antici- could not be description pate; and whether it comes within this (Italics supplied) *14 of fact.” Nichols vs. Marsland case aforesaid is cited. the. monograph in 1 Bar Review of a Can. author concerning 140-147, L. Rev. 549 the rule 57 Am. says supra Rylands and its limitations vs. Fletcher that: operation of the “The which excludes the ‘act of God’ extraordinary any occurrence
Rule in means pre- reasonably anticipated or or act which could not by care, may which vented and it be one reasonable guard physically impossible practically either is against. major neces- ‘To come within the of vis it is not Rule hap- sary unique, that it should the act should be that time; pen enough extraordin- for the first it is that it is ary pated’.” reasonably and such antici- as could not have been Citing Scott, City Montreal, v. 60 Watt Limited & Marsland, 1; 523; R. 69 D. L. R. Nichols v. Can. S. C. Fraser, 255; R. Valiquette 39 C. L. Ex. v. Can. S. R. 10 1; Pulp (1918), 43 L. R. v. D. Nashwaak Co. Wade Brunswick, Corporation (New A.); Greenock 143 C. 556; Ry. (1917) Nitro-Phosphate v. A. C. Caledonian Co., v. St. Docks D. at Co. London & Katharine Ch. p. upon 515. addition to the limitation the rule in In Rylands clearly vs. Fletcher case which was estab- by Marsland above reviewed a lished case decision subsequently other have been number of limitations English upon is imposed Courts that rule as accurately pointed out the 'author of the aforesaid monograph. authorities,
Turning we find American now to the Appeals York in Losee of New Commission reviewing Buchanan, Y. 476-487 after 51 N. vs. case, laid down therein Rylands the law asserts is : in this coun- law with the as settled “in direct conflict premises Here, upon
try. his own if one builds a dam water for his thus holds back and accumulates the and benefit, brings premises upon into a or if he his water reservoir, in case the dam or the banks of the reservoir give away he fault or neighbor flooded, and the lands of a are thus damage proof not liable for the of some is without negligence part.” on his Angelí Citing Courses, many Water Section 336 county. decision from other courts in this Freeman, Mr. the editor the American Decisions referring Rylands series of selected cases to the case 29 id. 149 that “the vs. Fletcher remarks in his note at country.” adopted author doctrine not in this That Judge points out also that Oliver Wendell.Holmes *15 thoughtful p. “very Am. L. Rev. 1 criti- article” in 14 it. cises condemns (4th Law
Mr. in text on the of Torts Burdick his Ed.) p. 14 asserts: Fletcher, recog- Rylands with its of even v.| “The rule England, limitations, great in
nized no favor even finds generally and it.” refused to follow American Courts have p. quotes The same author in his text aforesaid 537 Pollock, (12th Ed.) The Law of Torts 495-496 to effect: tendency “‘the been en- of later decisions has rather to courage discovery exceptions of than otherwise. * * * found, being closely No has been not similar case facts, previously recognized
in its or within the same category, unqualified liability in which the rule of with- negligence proof- out of been enforced.”’ has
505 Pennsylvania Pennsylvania in Supreme The Court used this Sanderson, 126 has Pa. 113 St. vs. Coal Co. language: Rylands, re- Fletcher v. declared “The doctrine law, perhaps general is
garded statement as subject England, open but is criticism not many generally exceptions not been and has there and obvious country. A which casts rule in this received responsibility person of an insur- upon an innocent generally best, and will not be er applied a hard at is one required by public or the policy, unless some parties.” contract of the Negligence (Revised Ed. See also Shear. & Redf. on 1941) p. p. 379 and Id. 1775. Law”, Bishop in work “On Non-Contract
Mr. his dis- appended thereto note 839 in an elaborate Section the rule cussing Rylands Fletcher case vs. severely says: given rather above announced therein any not the law say such is “It needless to is * * * therefore, reasoning, country. common-law case, proceeds Rylands so far as it in this Fletcher and negligence, reas- ground the individual than other reasoning judges, law.” oning of the and not the “Readings (1941) Harper’s in Torts” in 2 We find following language appears in 15 Texas used which Law Rev. .355: have refused half our states “the in about courts doctrine, expressed, or limited either as
follow the time, jurisdictions. At the same some of the American in at least the District of Columbia nine states and followed, by express approval either doctrine has been Fletcher, Rylands application sim- v. of a ilar rule.” appear to are cited in the notes to the text which
Cases *16 uphold these statements. litigation may decision in be the rule of
Whatever closely in Rylands facts involved to similar in those case,
vs. Fletcher there can be little doubt of the cor- ultimately rectness of the conclusion at which we shall arrive in the at bar cases under their facts and general findings of the District Court. Rights (2d Ed.)
Wiel’s in the Water Western States pp. upon authority 257 163 cited of numerous § cases that: states ditches, ap- “The and similar use means of flumes is, using paratus course, usual, of the make the most not, means, way by any water in this does appropriator breaking, against damage an insurer of others from overflow, seepage, escape or other English Rylands water. The famous case of Fletcher v. reservoir, declared that a man builds a works or other water, peril. to hold the at his But such is not law merely West. The ditch owner is not liable because occurred, escape only the break or but if it occurred
through
negligence. Negligence
his
must
It
is
be shown.
ipsa loquitur
negligence
not even case
res
presumed
escape
not
from the mere fact that a break or
ordinary
negligence,
occurred.
rule of
there
ordinary
must be a failure to use the care which an
prudent man would have taken under
the circum-
stances, applies.”
Big
So Mr. Chief Justice Potter in Howell vs.
Horn
Co., Wyo. 14, 36-37,
Basin Colonization
507 962, E. 13 A. & Ann. Cases 263. 384, 92 Pac. 36 Mont. E. the & Ann. appended case in A. note to this
In the it is said: cases irrigation of an the owner is well “It settled skill to reasonable care and is bound to exercise ditch causing injury
prevent
to others. Con-
the ditch from
damages
sequently
others
all
he
liable for
sustained
is
negligence or unskillfulness in
as a result of his
maintaining,
constructing,
operating
the ditch.”
many
including
(Citing
supra
Howell
cases
case
jurisdiction).
from
language:
The note then uses this
above,
appears
“In
from
rule stated
General —As
liability
of a ditch
for
the foundation
owner’s
conse-
negligence.
negligent,
quential damages is
If he is not
Gregg,
413,
429,
Parker
he is not liable. See also
v.
136 Cal.
22; Messenger
Gordon,
App.
15
69 Pac.
v.
Colo.
Pac. 959.
62
Likewise,
injury
“Inevitable
where the
is
Accident —
accident,
an act of
due to
owner is not liable.
God or an inevitable
the ditch
Thus,
irrigation
an
canal owner
injuries resulting
is not liable for
from a break in his
unprecedented
canal which
is caused
storm of
se
verity.
Irrigation
Valley
Pitzer,
Grand
Co. v.
14 Colo.
123,
App.
Similarly adjoining in much later case from our Nebraska, Creamery Thomp- state Fairmont Co. vs. 677, son 139 Neb. 298 N. W. the court had occasion to define the term “act of God” used these words: detailing unduly, “Without the evidence we are con- only logical vinced that conclusion which can be unprecendented drawn is that the flood was such an catastrophic legal nature falls within the definition of an act of God. defined, think, correctly It has been we in the follow- ing language: God’, ‘An act as the term known law, extraordinary to the is such unusual and an mani- *18 festation of the forces of nature it could that not under anticipated normal Southern expected. conditions have been or Co., 313, R. Co. v. Cohen Weenen & 156 Va. 563, 157 S. 564.” E. adjoining Another case from an in state our moun- plateau region tain where extremes of weather can rarely past arise such as have occurred in the is Peel Chicago Co., 334, vs. M. P. & P. R. 22 St. Mont. Pac. (2d) against 617. That an was action railroad com- damage pany by allegedly for flood caused insufficient opening company in fill a made a water across any negligence course. The defendant denied on its part July and as an affirmative defense asserted that on 30, unprecedented flood 1931 there was an unusual and damage. which was the cause of the urged flood which the defendant as a storm and by the court: defense is thus described clear, however, 30, 1931, July storm of “It is extraordinary unprecedented. Two witnesses was living up Ditch” from the rail- about two miles “Sand question, 661, fill C the one in testified that the road C 1931, July, they experienced prior worst storm had twenty years twenty-two prior occurred or to that witnesses, who in time. One of these resided the same 1931, being place the speak in testified: T of those two as good worst. The one in 1931 looked me a deal twenty-two ago.’ years worse than one witness, vicinity “Another who had lived in the since my up place T said: had lots of trouble around day July. comparison the 30th the amount of water I saw that of last There is no day compared as with up there; eight water I have ever seen before at least ten I times more than ever see. I had never seen big before; storms but we up had high there water testified that further nothing whereas other which he witness that.’ This like Butte, impaired the road had storms highway washing used, out continually culverts, the road had rendered bridges this storm absolutely impassable. vicinity living the immediate “Another witness anything up before like it there T never seen had said: in years There were twenty-two been I have there. one’. A witness from not like that but some storms any my region time in ex- never at testified: T same anything living of the woods saw perience in that neck * * * largest I I ever saw. storm that. It was like never years twenty-five anything in the like that all saw saw, I ever up worst I lived there. It nothing close to it’.” come expressed Upon views fol- record the court its lows: “Any all the evidence consideration fair indubitably must lead to the conclusion case storm was ed violence. unprecedent- unusual, extraordinary, and precedent it is rec- No for disclosed the twenty- noteworthy twenty or storm occurred
ord. One two *19 years previous the under consideration. to one however, one, approximate this one. So did not That concerned, never was a the record is there simil- far as region, downpour either or the before after are Likewise, grade. the rec- construction of the railroad ord is instance of water devoid, testimony showing any entirely of other backing up from the culvert. All drainage testimony the that the met is to effect the facilities day requirements ques- the until the of the storm in facts, light In the therefore, tion. of the of results storm, contemplation law, in of were acts of God. Co., Chicago, Ry. 33, Lyon 27 C. L. 886; etc. v. 45 121 Mont. P. ’ R. 1106.’ analogous presented by A situation to that somewhat arising concerning bar is the cases at liability municipality a where of it constructs storm ordinary but which sewers sufficient under conditions inadequate carry surplus consequence to waters in are
510
e.,
“extraordinary”
flood,
an
i.
of
storm
that
one
ordinarily
anticipated.
would not
be
84,
Spitzer
City Waterbury,
154
In
vs.
113 Conn.
Supreme
Atl. 157 the
Court of Errors
Connecticut
concerning
question of this
dealt with a
character
said:
it
“If, however,
municipality
a
and sewers of
drains
upon
amply
them
to meet all demands
are
under
liable because
sufficient
ordinary conditions,
municipality
not
is
they may
inadequate
carry
prove
off
extraordinary
surplus
from an
storm or
waters
1136,
Juris,
1895;
Corpus
McQuillan,
flood. 43
Munic.
6
§
Corp. (2d Ed.)
extraordinary
An
2868.
storm
§
one,
necessarily
unprecedented
is not
an
but one that
happens
rarely
ordinarily
so
unusual
that
is
and not
Haven,
expected.
to be
Diamond Match Co. New
55
v.
510, 527,
409,
Rep. 70;
Conn.
13 A.
Am.
3
St.
Geuder
491,
Milwaukee,
835;
v.
147 Wis.
133 N. W.
Richmond
Wood,
75,
found,
v.
and
109 Va.
tion or of plaintiff’s a direct rights by invasion of the plan reason of a defective of construction.” appellants general come finding here with a against the trial court Concerning them. effect given finding such a this court has said in Hinton Wyo. 78, vs. Saul 37 259 185 Pac. at 191 that: court, general “And in causes tried finding is one every special thing necessary to be found to sus- judgment.” tain the Nauman, Wyo. And vs. Wallis (2d) 157 Pa. pointed 285 it was Knaggs Mastin, out vs. *20 Supreme Kan. 533 the opin Court of Kansas in an by to ion assented Mr. Justice Brewer said: general finding by ‘“Where the facts are established court, always presumed of controverted it must be that all the party are established of facts in favor the finds, against party against for whom the court whom the court finds’.” just See Wallis case cited also for other authorities point. course, on the same This rule is be, kept of reviewing mind the record we have before us in proper disposition order to reach a of these cases in connection with announced in the Willis case and subsequent decisions cited above. already alleged have any negli-
We indicated that gence part City on the of the on account of debris or being weeds left in the canal so as to obstruct the water negatived by finding flow therein has been of the Rylands trial court. We have seen also that the rule in supra vs. Fletcher appear which would to be invoked by plaintiffs’ pleadings initial can not followed in weight of the view evidence herein and the of American authority point. on the It is likewise true that the Dis- evidence, upon trict found Court substantial as we view reasonably by as we think it and is the review shown ,that given of the evidence over- herein above by flow was caused “act God” as that an already is term defined the decisions mentiond. It is too, plain testimony expert from the of the witnesses parties from for both sudden volume waters melting City snow in and around the over-taxed carrying capacity question. of the canal in There is testimony capacity that the substantial the effect ample requirements of to meet the some the ditch years injury pro- thirty-five of use thereof without day January, City perty in until the 22nd 1943. places far in the north bank of the
So as the two low overflowed, are where water canal concerned testimony plaintiffs’ own ex- established *21 512 height
pert of bank for a that an elevation that witness twenty-five only five with of inches a width of less than point feet at the lowest how much elevation or —and place low width at the other would have sufficient been against water, protect the flood of to the record does prevented have not show-—-would been sufficient have of an the water then. Nevertheless this wit- overflow that the water “wouldn’t run over ness also stated have did”, e., have at same time it i. it would run the that over later. is substantial evidence on which the trial court
There general findings could its from which can be base reasonably expected that no one have inferred could slightly an at these low that there would be overflow legal negative appear places. That also would findings upon propriety, of trial record concluding negli- court, was this court that there plaintiffs’ City. gence part Indeed of the seen, already stated, just have as we mentioned witness M. at 5:00 P. Jan. water in ditch that he saw the nothing eye had then 1943 but trained observed his any- part along “of fear on his ditch that excited very Bramwell, B. thing happening the ditch”. As vs. rather unusual case Carstairs well said a was (1871) where defendant Taylor L. R. 6 Ex. 217 knawing receptacle in a hole rat held liable for a not through a hole storage flowed water which for plaintiff’s property: injured negligence? there, then, any I think evidence of “Is constructing negligence said there in so not. It is place the box that if hole were made in would enter the the water this But can it said that warehouse. how be negligence, there was when constructed it was way things ordinarily which such are constructed? repaired, repaired probably it will When it a have such but, way again; I this accident cannot occur as negligence said, often to treat evidence of say grows tois that whenever the world wiser it con- negligence.” that came before of victs those heretofore men- It must not be overlooked either as judge tioned the record herein shows that the trial litigants presence request and in the at the parties inspected premises for all involved counsel such circumstances we have in these law suits. Under Patee, Wyo. vs. in Davis-Robinson heretofore said *22 470, (2d) 57 Pac. 681: in addition to the evidence “It is to be observed that above, being case the condition discussed noted, judge, already apparently trial has been with parties, premises
the consent of the went to subject owner and of this the cement work viewed which is the controversy. circumstances, Under such findings of especial the trier of facts are entitled to weight reviewing court, and, and consideration in a least, say the except very should not be set aside for strong reasons, and following excellent as the author- ities will demonstrate:” (Cases cited).
To the same Binning effect is our case of Miller, vs. Wyo. 114, (2d) 146 Pac. 527. argument
There was some respondent’s brief to the effect that the maintenance question of the ditch in governmental was a City City function of the and that would liability therefore neg- immune from even if ligent. However we necessary do not find pass on find, for the reason that we there was evi- finding dence to City sustain the trial court’s that the negligent. was not find no open us,
We other entertaining course left expresesd the views above resultant from a careful and painstaking examination of the record and the author- pertinent persuasive touching ities deemed questions involved, judgments therein but to affirm the Campbell County of the District Court of in both cases. An order to effect should and will be entered.
Affirmed.
J.,
Judge,
Tidball, Dist.
concur.
Kimball,
PETITION FOR REHEARING
ON
1947;
(February
opinion,
For former
see
In of the Petition there was a brief E. C. Raymond Newcastle, Wyoming and R. Diefen- G. *23 Sheridan, derfer Wyoming.
OPINION ON REHEARING Riner, Chief Justice. rehearing
A Petition for has appellants been filed insisting in these wrong cases that it was for court adopt to negligence view part that no on the of the City had ignored been established and that we duty resting upon municipality inspect “to and maintain carry the ditch in a condition to off the water that might reasonably anticipated through be to run it.” In these we appellants contentions think are mistaken. “Negligence This court has said that: consists of a vio- duty owing by lation one to another”. vs. Hines Sweeney Rehearing, 82, 89, Wyo. on Petition for 28 Supreme Pac. 1018. The Court of the United States Jones, the case of the Baltimore & P. R. Co. vs. 95 U. 439, 24 S. L. Ed. remarked that: “Negligence is the failure to do what a reasonable and prudent person ordinarily would have done under the situation, doing circumstances of the or what such a person have existing under the circumstances would not may done. The essence of the fault lie in omission or commission.” duty imposed by
The upon City law was not more than so to part Burlington maintain that Ditch purchased which it had upon as to meet all demands capacity carrying its for the water therein which reasonably could expected proofs to arise. The record are such that the trial court could and did find that sufficiently performed duty. it had that It was un- obligation der anticipate no to such a flood of water pouring down the canal in be- as had never thirty-five years fore in appeared. of its existence catastrophic most unusual and the flood nature of January 22, 1943 led one of the witnesses for the City vicinity many years who had lived in that for state that he had water in the ditch never seen the high night as it use his own was that and also—to words —“I never seen my a flood like that in life”. In original opinion pointed herein it was out that the expert parties agreed witnesses on behalf of both more water came into phenomenal this ditch when the consequence thaw occurred in of the chinook wind than designed carry. it was As we understand the record the failure City inspect non-failure of the nothing ditch had unprecedented to do with the natural actually produced damage force which in suit. Complaint City keep is made that did not “the banks” of the ditch “level”. It will be recalled water where it overflowed was *24 three but to four inches deep part according at the lowest of the ditch to the Butler, witness, width this
plaintiffs’ expert and the place twenty low was less than feet. ifBut these banks exactly all, places had been level with no low at appellants witness told counsel for on his direct exam- ination : “Q. bank, ‘A’, Now, point top if the of this at the continuing along past point level, ‘B’ had been having them, places
instead of lower in these would spilled did, you water have over as it saw it? Well, quick.” “A. it have wouldn’t done it as And response on cross examination the same witness practically question the same reiterated that state- “Well, substantially ment these words: it wouldn’t say have run over at same time it did”. That is to testimony it would done was fol- have so later. This lowed Butler effect: another statement of Mr. to this “No, (the place) I would don’t think it ditch at the low (the water) have held City
Additionally the Street Commissioner before flood who had examined the ditch testified: “Q. spot you was a low at Did notice that there
alley Carey Avenues? between Kendirck and Well, something tell with a “A. like is hard to eye. naked “Q. you Did notice that? say did, ups “A. I couldn’t I because there along
downs all that ditch. “Q. you spot, It didn’t occur was too low a might spill where the water out? No, “A. sir.” appear decidedly City negli-
It would harsh hold the gent keeping in not this bank level when neither the expert plaintiffs’ nor witness Commissioner Street *25 could see that the prior peak of the flood Butler to the It hold the water. insufficient to bank of ditch was required surveyor’s determine evidently instruments to being exactly the bank was. just level how far from entirely, evident that even it is aside from this fact But level, have overflowed ditch would if it had been unprecedented flood anyway. In words the there other trouble, e., i. of all waters were the direct cause legal of that they sense were an “act of God” term, the trial court concluded. as urged dis- without
It that the record shows is also a foot pute .95 of “that the bottom of the ditch raised testi- It would seem that in its downward course”. evidently mony is that of appellants which refer witness, Butler, expert measure- their who took his “longitudinal platted cross section and vertical ments 1944, 20, nearly year after February of this canal” whether asked the flood in occurred. When the meas- time he the conditions of the ditch at the took they the flood were when urements were the same as “well, 1943, responded place January 22, he took say ditch was of the course I couldn’t the bottom change exactly same”; observed no that “he had 1944”; 20, February January 22, 1943 between and approximately “the that conditions were day specified same”. will that no time It be noted 22, query January or the several relative to 1943 in the remembered it will be answers above mentioned and during flood, part day a substantial of the However, assuming the ditch bottom was under water. part day referred witness to that when the water, ditch bottom more less clear of the con- only approximate dition thereof was stated an against testimony estimate. As there is the evi- expert City, Spiel- dence of the E. witness for the Jesse man, said, original opinion, who indicated that the ten inches rise in the bottom of the ditch was place flood took condition of the ditch when the
not the explained of the ditch had been how the bottom flood waters themselves. elevated the action of the court, testimony, could Upon the trial this conflict reasonably came conclude that at the time flood ditch, appreciably raised. bottom was not down the its Indeed, after- late in the Mr. Butler himself said nothing January which should 1943 he saw noon properly func- would not cause alarm that the ditch *26 are, course, find- court’s bound trial tion. We is, ings upon disputed questions there of fact where support them and evidence to case, in this substantial judge inspected premises. himself where the trial argument support of the Much in the brief rehearing very ad- well have been petition could for the case was the trial court when dressed to before realize late here. We disposition, but arrives too for duty on they perform full their that counsel feel should presenting matter clients behalf their obliged, how- they are have done. We that we think expressed re- and the ever, to conclude that the views original opinion stand should sult reached accordingly rehearing should petition for denied.
Denied. Judge, concur. Dist. Tidball, J. and Kimball,