Teeter v. Nampa & Meridian Irrigation District ( 1911 )

ON PETITION FOR REHEARING.

SULLIVAN, J.

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 flood water coming down said channel, and in said opinion, Mr. Justice Ailshie, speaking for the court, said:

“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.

Ailshie, Presiding J., concurs.