Mack v. Jackson , 9 Colo. 536 ( 1886 )

Elbert, J.

The uncontradicted testimony of all the witnesses who testify upon the subject is to the effect that there was a great scarcity of water in the Fountain, the stream from which the ditch in question was taken; that, while there was some supply of water at what are called the “lower” and “middle heads” of the ditch, at the “first head,” to which the injunction alone applied, the scarcity of water was such that the plaintiff could not have irrigated his land therefrom had the injunction never issued; that there was but little or no water obtainable through this first head; that the distance to the plaintiff’s land was about two miles; and that there was not enough water in the ditch to reach his land. The plaintiff made no effort to controvert these facts. In view of this evidence, we see no reason for disturbing the verdict of the jury. The court, notwithstanding the -verdict, entered judgment in favor of the plaintiff for nominal damages, with the consent of the defendant. This obviates the objection that the court refused to instruct the jury that the plaintiff was entitled to recover nominal damages. The instruction, however, which the plaintiff claims to have asked in this behalf, is so blind as to leave its meaning in doubt, and was properly rejected.

The following instruction is objected to: “In passing upon the question of damages, and in considering the evidence, you may consider whether or not the plaintiff might have obtained water through another ditch readily and at slight expense; and if he could have obtained sufficient water through some other source to have prevented the injury, he is not entitled, it seems to me, to recover a greater sum than it would, under the evidence, have reasonably required for him to have expended in procuring the water from such other source, thereby preventing the injury complained of in this case.” This instruction was pertinent to certain evidence, to the effect that the plaintiff could have secured water for his crops at points on the stream lower down, nearer his ranch, through the middle and lower heads of the ditch, the use of which the injunction did not forbid. It is a rule that one cannot recover for an injury which he might by reasonable precautions or exertions have avoided. Sedg. Dam. 105.

The judgment of the court below is affirmed.

Affirmed.