114 P. 8 | Idaho | 1911
Lead Opinion
This action was instituted by the plaintiff for the purpose of securing judgment restraining and enjoining the defendant, the Nampa & Meridian Irrigation District, from maintaining a spillway in its canal and from using the same to turn out flood waters so as to flow over and across the plaintiff’s land. The court heard the proofs and rendered and entered judgment in favor of the plaintiff enjoining and restraining defendant from maintaining the spillway, as the same had been constructed in its canal, and from turning out the waters on to the lands of the plaintiff.
Plaintiff owns a farm in what is known as Eight-mile Bottom, in the Boise Valley. The defendant is the owner of what is commonly known as the Eidenbaugh canal. This canal runs along and by respondent’s lands on the east side thereof, the canal being above the lands on the upper or higher lands. In this locality the canal crosses a series of draws or natural drainage basins, the principal ones of which are designated as Five-mile, Seven-mile, Eight-mile, and Ten-mile creeks. It appears that in the winter and early spring from January to March more or less flood water comes down these draws from the higher lands and flows over and across plaintiff’s land. The volume of water flowing down these draws varies according to the amount of snowfall and the rapidity of the break-up or thaw-out in the early spring, and is also governed by the amount of rainfall during these months. The flood of waters coming down these draws is sometimes of a very short duration, lasting only an hour or two. It seems that the water comes down these several
The appellant company contends that all the flood water eoming down these draws or basins has been accustomed in its natural course to flow over and across the plaintiff’s lands, and that the appellant has in no way increased the volume or caused any more water to flow over the lands of the respondent than has usually flowed across those lands, .and that it is therefore not responsible, and should not be ■enjoined from maintaining its spillway in the bank of its •canal. The respondent contends, on the other hand, that the waters in their natural flow came down at least three ■different channels and spread out over the lands so that they •did no material damage to his farm, and that the injury and ■damage done him by the appellant consists in its collecting the waters from these several channels into the canal and then letting them all out at one place through the spillway; that by so doing the waters were poured out on his lands in one great torrent, thus washing out and cutting channels In his land and thereby doing him much damage.
There can be no doubt but that the appellant is under no -obligation to collect these- flood waters and carry them off through its canal. It cannot be expected, or required to do so. The natural flood waters which gather in these draws and basins must necessarily flow down over the respondent’s land. It is clearly shown that the canal has not sufficient
The judgment should be affirmed, and it is so ordered. Costs awarded in favor of the respondent.
Rehearing
ON PETITION FOR REHEARING.
A petition for rehearing has been filed in this case.
In the opinion heretofore filed, it appears that the judgment of the court below was affirmed. On a re-examination of the matter we find that this court held that appellant was entitled to maintain and use the spillway in controversy for the purpose of delivering on to the land of respondent in the channel in which said spillway is situated, the natural
“The appellant is under no obligation to collect these flood waters and carry them off through its canal..... If the appellant desires to collect these flood waters in its canal and let them out through spillways, it may undoubtedly do so. But it -must so distribute them as to cause them to flow down over respondent’s lands in the accustomed channels, and at such places and in such manner as to distribute the waters in like manner and volume as they were accustomed to flow in their natural course, and thereby entail upon the respondent the minimum of damage, and not increase the dangers and damages over that caused by the flow of the waters in their natural course.”
This is precisely what the judgment of the court below would not permit the appellant to do. The conclusion of this court in said opinion will be modified to this effect: That the cause will be remanded, with instructions to the trial court to modify its former judgment in conformity with the views expressed in the opinion.