Lisonbee v. Monroe Irrigation Co.

18 Utah 343 | Utah | 1899

ZaNE, C. J.

The plaintiff alleged in his complaint he was the owner of 56 acres of land situated below defendant’s canals and lands irrigated from them; that they owned and controlled a certain ditch through which they carried surplus and waste water from off lands irrigated by them to the Sevier river, the source of supply; that such ditch extended through plaintiff’s land and had been improperly constructed and was negligently maintained; that in consequence of such defective construction and want of repair the drainage from the higher land irrigated from defendant’s canals was collected, and caused to flood a portion of plaintiff’s land, washing it away and rendering it unproductive. In his complaint, the plaintiff also declared upon another cause of action similar to the one above set forth, and concluded with a prayer for judgment for $575, and for a writ of injunction restraining the defendants from so maintaining their surplus ditch as to injure his property.

Tbe defendants answered denying the improper construction of the ditch, negligence in maintaining it, or that they caused plaintiff’s land, or any part of it to overflow, or that any water escaped from their surplus ditch on to it to plaintiff’s injury.

Defendants had the right to conduct water through their ditches and to deliver so much as was necessary for the irrigation of the lands of their stockholders or other persons, and if in consequence of improper and negligent irrigation the proprietors of such lands allowed it to escape onto the lands of other persons to their injury, such proprietors would be liable to such other persons for such negligence, and not the canal companies without fault. The law requires canal companies to use reasonable skill, judgment and care in the construction of their ditches and in their maintenance and repair, and imposes upon proprietors of irrigated lands like skill, judgipent, and care in the use and control of irrigating water. If such water flows upon the surface of irrigated lands onto adjoining lands of another, to his injury, the person whose negligence causes or permits it must respond in damages. When the lower land becomes soaked and too wet from infiltration and percolation from irrigated land, and is thereby injured and damaged, we are not disposed to hold that the upper proprietor can be held liable when he irrigates his land with reasonable care, using no more water than is reasonably necessary in so doing.

Undoubtedly canal companies and other persons should conduct their surplus waters, or waters they may allow to go to waste in suitable ditches to the source of supply when practicable, or to otherwise control them so they will not injure the property of other persons. Judgment, reasonáble skill and care should be used in constructing and maintaining surplus or drain ditches; such ditches should be adequate and suitable to carry such surplus or other water allowed to collect in them so that it may not escape onto the adjoining lands of other persons to their injury, and they should be kept so by necessary repairs, and such ditches should be so constructed as not to obstruct the natural flow of surface or other water to the injury of the lands or crops of other people.

North Point Cons. Irr. Co. v. Utah & S. L. Canal Co., 52 Pac. Rep. 108.

Water controlled by gravitation manifests a power familiar to all, capable of accomplishing useful and beneficial purposes or destructive and disastrous consequences and results, and therefore when individuals interfere with or undertake to control such a force as an agency for their own purposes, by the employment of dams, canals or machinery, the law requires them to use judgment, skill, care and caution in the construction and maintenance of such means and appliances, in order that their neighbors or other people may not be injured. But they are only required to' anticipate and prepare to meet such emergencies as may reasonably be expected to arise in the course of nature; they are not required to prepare to meet unlooked for and overwhelming displays of adverse power — such as storms of such unusual violence as to surprise cautious and reasonable men. Jordan v. Mount Pleasant, 15 Utah, 449.

We deem this explicit statement of the rights and obligations of persons controlling and using water for their own purposes under the conditions mentioned, because a clear understanding of such rights and duties is necessary to an intelligent and just disposition of this case.

It appears from the record that this case was tried by the court below sitting as chancellor; that a jury was called to try the issues as to damages; that they found the issues for the defendants; that the court regarded the verdict as advisory simply, and made findings of fact upon the evidence, stated conclusions of law, and entered a decree denying the injunction asked, adjudging the issues as to damages against the plaintiff, and costs to defendants. The court stated in its findings “That the ditch was not negligently constructed or maintained,” and the plaintiff assigns this as error.

The defendants having used and controlled the ditch to carry surplus and waste water to the Sevier River, they should have given it sufficient capacity to hold all water that might be reasonably expected to accumulate in it, and they should have enlarged and repaired it from time to time as experience, observation, and safety might indicate.

It appears that a flume of the Annabella Canal Company obstructed it in part for a time and at times caused it to overflow its banks; this the defendants should have removed or avoided without unreasonable delay; and it also appears that Buttlesen’s dam in Monroe Canyon broke, and its waters ran over plaintiff’s land. This, of course, defendants were not responsible for; but breaches in the banks of the ditch were allowed to remain an unreasonable length of time, through which its waters flowed onto plaintiff’s land, and the decided weight of evidence shows that the ditch in places was inadequate to hold all the water that was allowed to accumulate in it, in the absence of extraordinary and overwhelming emergencies. Of course waters from rains within the scope of reasonable expectation will at times be added to those from irrigation, and swell the volume. Such contingencies the defendants were bound to anticipate in the course of nature.

How much damage to plaintiff’s land was caused by the waters of the ditch, in the absence of extraordinary and surprising emergencies, it is difficult to ascertain from the evidence. It clearly appears from the decided weight of it there was some. Without specifying the evidence that proves this with more particularity, we are clearly of the opinion that the defendants did not use such judgment, diligence and care in the construction and repair of the surplus ditch in question, ar the law required them to do, and we hold that the above finding was erroneous.

For similar reasons portions of the 6th, 7th, and 8th findings of fact must be held to be erroneous.

Counsel for plaintiff made offers to prove certain facts, but the court required them to have the witnesses sworn to put them upon the stand so that the admission of questions and answers might be ruled upon. Counsel refused to do so and the offers were rejected. This ruling of the court is also assigned as error. We hold that the court was right.

It appears from the record that the trial was attended with unusual irritation and discord; that the language and manner of one of plaintiff’s attorneys toward the court on the trial, and other language of the same attorney out of the hearing of the court, but afterwards brought to his ears, was regarded as contemptuous, and at different times during the trial the court used language toward the attorney which being in the hearing of the jury he alleged was prejudicial to his client’s case, and for that reason he excepted to it, and assigns it as error.

The court has the right to maintain its dignity and reprove or rebuke counsel for language and conduct tending to bring it into contempt, or in a proper case to punish by fine, and in some cases, imprisonment. Counsel should be respectful, and the court should preside with, dignity and propriety. Counsel also have rights which the court should at all times respect.

In view of tbe record, we are disposed to bold that the language excepted to was not prejudicial error. Numerous other errors are assigned which we have considered, but do not deem it necessary to extend this opinion by a special examination of them.

The judgment is reversed, with directions to the court below to grant a new trial. Costs of appeal awarded to plaintiff.

Bartch, J. and Miner, J., concur.