28 P.2d 195 | Mont. | 1933
It does not follow that, because a corporation is public, it may not be subjected to the rules of law governing other corporations. This mantle of immunity which covers a public corporation, or even a state, may be and is east aside whenever such corporation exercises functions in reference to its property in a private capacity. (14 C.J., p. 75, sec. 45; Stern v.State Board of Dental Examiners,
So far as we have been able to ascertain, irrigation districts without exception are held liable for damages caused to private property by reason of negligence of the officers, agents or servants of such corporations. We are familiar with the rule in California as announced in Whiteman v. Anderson-CottonwoodIrr. Dist.,
What is the status of an irrigation district in Montana? Is it a public corporation, exercising governmental functions, and to such an extent that it cannot be sued? We respectfully submit that it is not and we are content to ground our position squarely on the decisions of this court. The lower court placed great reliance on the case of Crow Creek Irr. Dist. v. Crittenden,
The rule of nonliability as applied to counties has been approved by this court in the case of Smith v. Zimmer,
The particular question of liability for damages resulting from alleged negligence has been decided by the California court in the case of Whiteman v. Anderson-Cottonwood Irr. Dist.,
It is true that in the case of Bray v. Cove Irr. Dist.,
The latest California case upon the subject is Yolo v.Modesto Irr. Dist.,
In general, it alleges that plaintiffs are the owners of 56[1] acres of described land situated in Ravalli county; that defendant is the owner of an irrigation canal used to convey water for irrigation and other purposes on lands lying north of the land of plaintiffs; that the canal runs in a northerly direction on the east side of, and on a hillside about 100 feet higher than, plaintiffs' land; that the canal is constructed of porous rock, sand, and gravel; that the flow of water in the canal for several *527 seasons has saturated the bottom and west wall of the canal so that it is subject to slides; that the west bank for several months prior to May 13, 1922, was wholly inadequate to support the waters flowing therein; that waters seeped through the west wall and the bottom of the canal and weakened it, causing slides and cuts, and making the canal unsafe as a means of carrying water; that the defendant knew, or by the exercise of ordinary care would have known, of its condition, but failed and neglected to repair it, and failed and neglected to strengthen the west wall and bottom of the canal, and in consequence, on May 13, 1932, the west bank or wall broke at a point immediately east of plaintiffs' land, permitting the water of the canal to flow over and across their land, causing gravel and debris to be deposited on, and causing a deep gulch to be washed in, plaintiffs' land. The damages are set out in detail.
It is contended by defendant that the complaint is insufficient for want of an allegation that the porous rock, sand and gravel were or are unsuitable as materials for the construction of a canal. This contention overlooks the allegations to the effect that, to the knowledge of defendant, actual or constructive, the west wall and bottom of the canal had become weakened by seepage, causing slides and cuts at and near the point where the break occurred, and the canal had become unsuitable and unsafe as a means of conveying water, and that defendant had neglected and failed to repair it or to strengthen its west wall and bottom.
The complaint states facts sufficient to constitute a cause of action within the rules announced in Watts v. Billings BenchWater Assn.,
Because of this holding that an irrigation district exercises[2] governmental functions, it is contended by defendant that it is not liable in tort. In the later case of Thaanum v.Bynum Irr. Dist.,
The Idaho supreme court has given irrigation districts about the same characterization. (Lewiston Orchards Irr. Dist. v.Gilmore, 53 Idaho, ___,
In Bray v. Cove Irr. Dist.,
Defendant is liable for damages due to its negligence, if proved, in the construction and maintenance of its irrigation canal, and the complaint states facts sufficient to constitute a cause of action.
Defendant also contends that it was proper to sustain the[3] motion for nonsuit because the evidence was insufficient to make out a prima facie case of negligence. The evidence discloses that defendant's canal runs parallel to another ditch known as the Ward ditch. The latter ditch is about 200 feet west of and on a lower level than the defendant's canal. The west bank of the Ward ditch is the east boundary of plaintiffs' land. There is irrigated land east of the canal. East of plaintiffs' land, and between it and the canal, slides occurred continually from seepage during several years preceding the time of the trial, and nothing was done to repair it. The seepage was about 50 feet or more from the canal. Plaintiff testified that he had a conversation, after May 13, 1932, with Mr. Wilcox, one of the agents of defendant. Mr. Wilcox was shown to be the ditch rider of defendant who was looking after the ditch. Plaintiff testified that during this conversation, Wilcox told him, in substance, that the seepage had been increasing at the places where it finally caused the ditch to give way, and that he warned the defendant corporation's engineer, Mr. Hogens, about it. Had timely and proper objection been made, it is doubtful whether this declaration should have been received in evidence. (22 C.J. 379, but see Schumann v. Mealiff,
The evidence further showed that the seepage occurred only when there was water in the canal; that on May 13, 1932, the bottom of the ditch gave way. The plaintiff, in describing what he saw shortly after the break, said: "It looked like the bottom fell right out of it. The water went west. With reference to the west bank of the ditch, the water went right under; it went right under the wall." On cross-examination he said: "The center of the ditch fell out and came out under the bank. * * * There was a big hole right in the bottom of the ditch. That was not caused by the water in the ditch flowing out through the cut; the water in the ditch went right through after the bottom fell out. The west bank of the ditch did not slide out before any water came out there. There was an arch right over the water first; there was an arch over the water at the time that I first observed it; but the west bank of the ditch was cut before I got up there."
Defendant contends that, since plaintiffs' evidence shows that the seepage causing the slides prior to May 13 was fifty feet or more from the west bank of its canal and not from the banks or bottom thereof, it does not show that the seepage came from its canal. As above noted, it was shown that the seepage appeared only when there was water in defendant's canal. There was none before defendant's canal was constructed and none until water was turned into it. These circumstances were sufficient to go to the jury on the question as to where the seepage came from. Defendant alleges in its answer that it came from the irrigated lands to the east. If it can produce evidence to that effect, the question becomes one of fact for the jury. Plaintiffs produced sufficient circumstantial evidence to show that it came from defendant's canal to make of it a jury question.
The only other question raised is that plaintiffs did not[4] allege or prove that a claim was presented to defendant before *531 the action was brought. There is no merit in the contention that a claim must be presented under our statutes.
The judgment is reversed and the cause remanded for a new trial.
MR. CHIEF JUSTICE CALLAWAY and ASSOCIATE JUSTICES MATTHEWS, STEWART and ANDERSON concur.