Shields v. Orr Extension Ditch Co. , 23 Nev. 349 ( 1897 )

The facts sufficiently appear in the opinion. Respondent brought this action to recover damages to his land and crops by water escaping from appellant's ditch, and for an injunction restraining a repetition of the wrongs complained of. A trial was had before a jury, which resulted in a verdict for respondent, assessing his damages in the sum of $50 36, and for costs. Thereupon the court ordered judgment to be entered upon the verdict, and granted an injunction, restraining defendant from permitting water to escape from its ditch upon a portion of the described premises and denying it as to another portion used by respondent as pasture land. It was shown at the trial that the ditch of defendant was upon a hillside sloping towards the lands where the damage complained of occurred. The ground through which the ditch ran was rocky and porous, and water constantly escaped with the knowledge of the defendant during the irrigating season when the ditch was full, not by means of overflow, but by seepage and leakage through its banks. These facts were uncontroverted at the trial.

Several of the instructions asked for by the defendant were refused by the court upon the ground that they were not applicable to the facts of the case as presented by the testimony. One of these was in effect that defendant was not liable for a mere accidental injury when no negligence was shown.

There was no testimony tending to show that the escape of water was the result of accident; on the contrary, the uncontradicted testimony showed a constant escape of water during the irrigating season with defendant's knowledge.

Another of the refused instructions was, in effect, that defendant claimed a prescriptive right to have the escaping water flow upon plaintiff's land; but, in fact, there was no testimony tending to show such claim. On the contrary, the testimony introduced by defendant itself was inconsistent with the instruction. Again, two proposed instructions, numbered 1 and 2, respectively, in the transcript, were refused by the court. Each of them is drawn upon the theory that defendant might recover if it has not been guilty of negligence. But, as the uncontradicted testimony showed negligence of defendant in permitting water to escape from its ditch, the issue of negligence was eliminated from the case. They were, therefore, inapplicable and misleading.

An instruction also was asked to the effect that the plaintiff himself should have exercised ordinary care to have avoided the consequences of defendant's acts, and failing to do so the parties were in mutual fault.

The doctrine of contributory negligence is not applicable to cases of this nature where the defendant had knowledge of the defects of its ditch and could have prevented the injury. Under these circumstances, no duty rested upon plaintiff to have avoided the consequences of defendant's acts.

In a case from Idaho, the supreme court of that state said: "A person owning a ditch from which water escapes upon the premises of an adjoining land owner, cannot escape liability on the ground that such land owner might, at a small expense, have prevented any damage by digging a ditch on his own land that would have carried off the waste water." (McCarty v. Boise City Can. Co., 10 P. 623; and cases there cited; Black's Pom. Water Rights, sec. 197.)

The court was asked to instruct the jury that, if the injury was caused solely by seepage, filtering or percolation, defendant was not liable. All of the testimony showed that the seepage of water from defendant's ditch was the cause of the damage. In such case defendant's liability is well settled.

In Richardson v. Kier, 34 Cal. 63, the court said: "He [the ditch owner] is bound to keep it [the ditch] in good repair, so that the water will not overflow or break through its banks, or destroy or damage the lands of other parties; and if, through any fault or neglect of his in not properly managing and keeping it in repair, the water does overflow or break through the banks of the ditch and injure the lands of others, either by washing away the soil, or covering the soil with sand, the law holds him responsible." See, also, Parker v. Larsen, 86 Gal. 236; Pixley v. Clark, 35 N.Y. 520; Angell on Watercourses, sec. 330.

At the trial the court allowed plaintiff to amend the addamnum claim. Plaintiff originally claimed $1,000 damages. By the amendment $1,400 was claimed. This was a matter within the discretion of the trial judge. If the amendment operated as a surprise to defendant, that fact could have been stated, and a continuance asked for. The verdict, however, being for only $50, when $1,400 was claimed by the complaint, no prejudice could have resulted to defendant by the ruling. (Miaghan v. HartfordFire Ins. Co., 24 Hun, 58; Johnson v. Brown, 57 Barb. 118; Vibbard v. Roderick, 51 Barb. 616; Currie v. N. J. C. R. R. Co.,61 Minn. 725.)

An objection was made to a ruling of the court in excluding one or two questions propounded to the witness Bryant by the defendant. There is nothing in the record to indicate what the proposed testimony would be. It was incumbent upon appellant to have shown the substance of his testimony, so that its materiality could be determined by this court. As the record now is, we cannot determine whether the court erred or not. (Marshall v. Hancock, 80 Cal. 82;Dainese v. Allen, 36 N. Y. Sup. Ct. 98;Berry v. Mayhew, 1 Daley, 54; Girard FireIns. Co. v. Boulden, 11 So. 773.)

Error is also claimed to have been committed by granting an injunction. It is said that the damages sustained by the plaintiff were trivial, and the inconvenience to the defendant disproportionate to the loss sustained. In its answer, defendant claimed a prescriptive right which would in time ripen into an adverse right. In such cases the party prevailing is entitled to have an injunction for the vindication of his right and its preservation. (Brown v. Ashley, 16 Nev. 316, and cases cited.)

Judgment affirmed.