279 F. 100 | 9th Cir. | 1922
Lead Opinion
(after stating the facts as above).
The gravamen of the present action is not founded in contract at all, but in negligence on the part of the defendants in respect to the dam and bulkheads and maintenance thereof. City Water Co. v. Fergus Falls, 113 Minn. 33, 128 N.W. 817, 32 L.R.A.(N.S.) 59, Ann.Cas.1912A, 108. In Free v. Parr Shoals Pwr. Co., 111 S.C. 192, 97 S.E. 243, in an action for damages to land through the negligence of the defendant in the construction of a dam, one of the defenses interposed was that the defendant had been given a right to construct a dam across a certain river, and that plaintiff had purchased his lands subject to such right, but the court held that, while plaintiff could not recover for damages resulting from, the erection of the dam, provided due care was exercised in its construction, yet defendant had no right to construct the dam in a negligent manner. In the
In Arave v. Idaho Canal Co., 5 Idaho, 68, 46 P. 1024, a large canal was built by the defendant and high embankments erected close to the homestead of the plaintiff, and the channel of the creek running along the line of plaintiff’s homestead was obstructed. It was allegéd that waters which had flowed away before the construction were by reason of the construction backed up upon the land of the plaintiff to his damage. The plaintiff settled along the line of the canal subsequent to the location thereof by the defendant. Defendant contended that it was not called upon to consider the rights of those along the line of its canal, where settlements were made subsequent to the location of the canal, but the court overruled the point, as “repugnant to every principle of equity and good conscience.” Gould .on Waters, § 232.
In McDonald v. Snelling, 14 Allen (Mass.) 290, 92 Am. Dec. 768, the court said: “Where a right or duty is created wholly by contract it can only be enforced' between the contracting parties; but where the defendant has violated a duty imposed upon him by the common law, it seems just and reasonable that he should be held liable to every person injured, whose injury is the natural and probable consequence of the misconduct. In our opinion this is the well established and ancient doctrine of the common law, and such a liability extends to consequential injuries, by whom
The duty which devolved upon the defendants was not that of insurance, but was to use reasonable care to construct the bulkheads of sufficient strength to resist waters which ought reasonably to be anticipated as likely to' come down the creek, and to use reasonable care to maintain» the bulkheads of sufficient strength to resist such waters. Bell v. McClintock, 9 Watts (Pa.) 119, 34 Am.Dec. 507; Thomas v. Winchester, 6 N.Y. 397, 57 Am.Dec. 455; Devlin v. Smith, 89 N.Y. 470, 42 Am.Rep. 311; Godley v. Hagerty, 20 Pa. 387, 59 Am.Dec. 731.
The negligent damming or collection of water or the careless obstruction of a flow of water, where if the obstruction should give way the lives and property of people will be in great peril, is an act of such danger that the person guilty of such negligence is liable to the party injured, irrespective of any contract between them. The principle is referred to in Savings Bank v. Ward, 100 U.S. 195, 25 L.Ed. 621, though not therein applicable.
The case appears to be one where answer is required. Judgment reversed, with directions to require defendants to answer.
Reversed.
Concurrence Opinion
(concurring).
While there is authority to sustain the ruling of the court below, that if at the time when the plaintiffs purchased their lots the defendants had accomplished the purpose for which they changed the course of the creek, and had lost all interest in the creek and in any property adjacent thereto, and were no longer maintaining the obstructions complained of, they would not be liable for damages to the plaintiffs (Blunt v. Aikin, 15 Wend.[N.Y.] 522, 30 Am.Dec. 72; Curtin v. Somerset, 140 Pa. 70, 21 A. 244, 12
