114 P. 553 | Ariz. | 1911
There was a substantial conflict in the evidence upon the question of the sufficiency of appellee’s culverts to carry such waters as might reasonably and naturally be expected to accumulate in times of heavy rain. The action of the trial court could only have been induced by the belief that the decision of the supreme court of the United States in Walker v. N. M. & S. P. R. Co., 165 U. S. 593, 17 Sup. Ct.
In this territory the common law has been adopted in a greatly restricted form, our statute upon the subject being as follows: “The common law, so far only as it is consistent with and adapted to the natural and physical condition of this territory, and the necessities of the people thereof, and not repugnant to, or inconsistent with, the constitution of the United States, or Bill of Rights, or laws of this territory, or established customs of the people of this territory, is hereby adopted and shall be the rule of decision in all courts of this territory.” In those jurisdictions where the common law has been recognized in its entirety as the rule of decision, owing to its flexibility, it is commonly modified in its application so far as may be necessary to meet changed physical and social conditions.'
In People v. Appraisers, 33 N. Y. 461, it is said: “No doctrine is better settled than that such portions of the law of England as are not adapted to our condition form no part of the law of this state. This exception includes, not only such laws as are inconsistent with the spirit of our institutions, but such as were framed with special reference to the physical condition of a country differing widely from our own. It is contrary to the spirit of the common law itself to apply a rule founded on a particular reason to a case where that reason utterly fails.” Under our statute the courts are
At no time in the history of this territory has recognition been given to the common-law doctrine of riparian rights, and the right of appropriation of all water, including flood waters, to any useful purpose is expressly authorized and vested by our laws in the first appropriator to the extent of his appropriation and use. The scarcity of running streams and gentle rains favorable to agricultural purposes and the comparative frequency of very heavy rains or “cloudbursts,” as they are locally termed, which cause raging torrents to suddenly form and rush for great distances through eroded channels called “arroyos,” without encountering any running stream or permanent body of water, render imperative such degree of care as will insure the maximum of benefit in the utilization of the former and the minimum of injury from the latter class of waters. Arroyos formed by the erosion of flood waters are usually permanent in character and of constantly increasing capacity. They have well-defined channels. Many of them have great capacity, and at times carry immense bodies of water. The reasons for the common-law rule against the obstruction of running streams apply equally in this territory to the obstruction of arroyos through which surface and flood waters are accustomed to flow.
Ref erring to local conditions in Minnesota, the supreme court of that state says: “We do not deem it necessary to determine whether this was a ‘natural watercourse,’ or mere ‘surface* water, under the legal definitions of these terms. If it be surface water, the general common-law doctrine that neither the retention nor repulsion of surface water is an actionable injury must necessarily be materially modified in such cases. In a broken and bluffy region of country, like that part of southeastern Minnesota adjacent to the Mississippi river and its tributaries, intersected by long, deep coolies or ravines, surrounded by high, steep hills or bluffs, down which large quantities of water from rain or melting snow rush with the rapidity of a torrent, often attaining the volume of a small river and usually following a well-defined channel, it would be manifestly inappropriate and unjust to apply the rules of common law applicable to ordinary surface water. In many
Among the enumerated powers granted to railroads by title 13, chapter 7 of the Revised Statutes of Arizona of 1901 is the following: “To construct said railroads and telegraphs across, along or upon any stream of water, watercourse, street, avenue or highway, or cross any railway, canal, ditch or flume which said railroads and telegraphs, or either thereof, shall intersect, cross or run along; but said corporation shall restore such streams, watercourses, streets, avenues, highways, railways, canals, ditches and flumes so intersected, to their former state as near as may be, so as not unnecessarily to impair their use or injure their franchise.” Civ. Code 1901, par. 859, subd. 5.
Independently of any statutory provision, we think the rule of the common law relative to the obstruction of running streams to the injury to adjacent lands is applicable in this territory to the obstruction of any well-defined arroyo or natural channel through which surface or flood waters, at times, flow. Nor does the foregoing provision materially restrict the measure of duty otherwise imposed by law upon the appellee. While the term “watercourse,” used in the statute probably as defined and used in England and the eastern states, would not cover wet weather arroyos, yet, in view of local conditions which must have been within the knowledge and contemplation of the legislature, and, in view of its use of that expression in connection with the words “stream of water,” we think the legislature intended, by the use of that expression, to include any well-defined channel or arroyo in which surface or flood waters flow in times of heavy rain.
For these reasons we think the case of Walker v. N. M. & S. P. R. Co., supra, inapplicable in this territory, and that the duty was incumbent upon the appellee to have constructed its roadbed, in so far as practicable, in such manner as, without unnecessarily impairing the use of its roadbed or injuring its franchise, would have left the arroyos which it obstructed in their former unobstructed condition.
The failure to submit the case to the jury under proper instructions inclusive of the measure of damages constitutes-reversible error, for which the judgment of the district court is reversed, and the ease remanded for new trial.
KENT, C. J., and LEWIS, J., concur. DOAN,.J., concurs in the result.