162 P. 973 | Or. | 1917
delivered the opinion of the court.
This is a suit to enjoin the defendant from allowing its waters to run upon plaintiff’s lands. The Circuit Court denied the relief prayed for, and plaintiff appeals.
The defendant is a private corporation, organized in this state under the act of 1891 for the purpose of supplying water for general rental, sale or distribution, for domestic consumption, watering livestock and irrigation. It is engaged in taking water from Hood Biver and distributing it to lands along the west side of Hood Biver valley. Its right of way traverses along and inside the boundary of plaintiff’s premises. The complaint charges that by reason of the defective construction of its ditch or canal, and by reason of its failure and negligence in keeping the ditch in good repair, the defendant company trespassed upon the lands of the plaintiff during the irrigating seasons of 1913 and 1914, by negligently and purposely allowing the waters of its ditch to seep, leak and escape through the bottom and side walls thereof and run down upon plaintiffs’s lands, to his great and irreparable damage, and that the defendant refuses to desist, but persistently continues to flood such lands.
Defendant denies that it has been negligent, or that any water from its ditch or canal has escaped by leakage or seepage, or percolated upon plaintiff’s lands, and contends that the same are naturally low, wet and swampy; that the waters found therein are the result of natural seepage and conditions; that its ditch was properly and skillfully constructed, and has been so
There is no controversy in regard to the right of way for the defendant’s canal. It must be assumed, therefore, that it has lawfully constructed its ditch over the lands of the plaintiff. The evidence shows that the defendant has been diligent in its effort to keep its ditch in repair, and to ascertain any leaks caused by gophers or otherwise, and to remedy the same. Plaintiff’s evidence does not show that defendant has been guilty of negligence which has resulted in any actual damage to him. The statute under which the irrigation ditch was incorporated provides:
“Every corporation constructing a ditch or canal, flume, or reservoir, under the provisions of this act shall be liable for all damages done to the persons or property of others, arising from leakage or overflow of water therefrom growing out of want of strength in the banks or walls, or negligence or want of care in the management of said ditch or canal, flume or reservoir. * * ”: Section 6540, L. O. L.
Without using the exact language of the statute, a Tule in conformity therewith was applied by this court in Mallett v. Taylor, 78 Or. 208, 213 (152 Pac. 873, 875), which was a case to restrain the defendant from negligently permitting water used by him in irrigating his land to escape by overflow and percolation on do the adjoining lands of plaintiff. Mr. Justice Mo-Bride, speaking for this court, there said:
*705 ' “In the case at bar we are satisfied that the defendant has conducted his irrigating operations so carelessly and with such disregard of the rights of plaintiff that the court was right in enjoining their further continuance in that manner. That cases must often arise where by accident, such as sudden floods, or unusual rains or other accidents, damage may occur to adjoining fields which could not reasonably have been foreseen, and for which no action will lie, seems to be established by the later authorities ”
It has been held that the owner of a ditch is not liable per se for leakage from his ditch, without negligence upon his part, by the burrowing of gophers or other animals: 3 Kinney, Irr., p. 3126, note; Tenney v. Miners’ Ditch Co., 7 Cal. 335. However, if the ditch owner is negligent, and injuries occur from this cause, he is liable: Greeley Irr. Co. v. House, 14 Colo. 549 (24 Pac. 329). The theory of plaintiff’s case, as declared by his complaint, is that the defendant was negligent in the respects alleged. He has failed to prove such negligence, and has also failed to show fairly that any Injury was caused to his lands or crops by water seeping or leaking from the defendant’s ditch. We concur In the finding of the trial court that the plaintiff has not proved a case sufficient to warrant the exercise of the extraordinary remedy by injunction: See 3 Kinney, Irr., § 1672, p. 3079; Emison v. Owyhee Ditch Co., 37 Or. 577 (62 Pac. 13); Howell v. Big Horn etc. Co., 14 Wyo. 14 (81 Pac. 785, 1 L. R. A. (N. S.) 596); Fleming v. Lockwood, 36 Mont. 384 (92 Pac. 962, 122 Am. St. Rep. 375, 13 Ann. Cas. 263, 14 L. R. A. (N. S.) 1628); Middelkamp v. Bessemer Irr. Co., 46 Colo. 102 (103 Pac. 280, 23 L. R. A. (N. S.) 795); Garnet Ditch Co. v. Sampson, 48 Colo. 285 (110 Pac. 79, 1136).