Woodland v. Portneuf-Marsh Valley Irrigation Co.

DAVIS, District Judge.

In this action the plaintiff, John T. Woodland, sought to recover damages in the sum of $1,500 for loss of his hay crop, alleged to have been caused by the flooding of his land with water from the canal system owned and operated by the Portneuf-Marsh Valley Irrigation Company, a corporation. The jury awarded plaintiff $700 damages, and defendant appeals from the judgment of the lower court in plaintiff’s favor for this amount and costs.

It is established by the evidence and admitted by the company that some water from its canals contributed toward the flow that overflowed Woodland’s land and injured his hay. In defense it is contended by the company that the evidence does not show that the water wrongfully discharged from the canals, or laterals of its irrigation system, was sufficient by itself to overflow the channel of the creek through Woodland’s land or cause any of the injury to his crops. But this is not a good defense, even though true, because where one contributes as an independent tort-feasor toward causing an injury, he will be liable for the injury done by him, although his acts or negligence alone might not have caused any injury. In this case the evidence tends to prove that there were at least six sources from which the water came that injured Woodland’s hay, and it is not contended by him that the company was responsible for more than one. And, while the evidence is very indefinite as to the relative and specific amount of water from each source, it is sufficient to show that considerable water from the company’s canals wrongfully ran into the creek that overflowed its banks and flooded Woodland’s property. And everyone who permits water to waste on to the land of others without right is liable for his proportionate share of the injury caused or the harm resulting therefrom, even though the water allowed to run down by each would do no harm if not combined with that of others, and the injury is caused by the combined flow wherein the waters of all are mixed and indistinguishable. If the injury follows as the combined result of the wrongful acts of several, acting independently, recovery may be had severally against each of such independent tortfeasors in proportion to the contribution of each to the injury.

(Gould on Watercourses, par. 222; Sloggy v. Dilworth, 38 Minn. 179, 8 Am. St. 656, 36 N. W. 451; 21 Am. & Eng. Ency. of Law, 719.)

The evidence is sufficient to sustain a verdict in plaintiff’s favor for the amount of damage caused by the company’s waste water, where it appears by a preponderance of the evidence that the company wrongfully permitted waste water to mix with other waters and the combined flow spread over Woodland’s land to his damage. Exact and definite measurements of such waters are not essential to sustain the verdict of a jury in determining what amount of damages a company should pay under such circumstances as compensation for the injury caused by' its part of such waters, although some evidence in that respect is essential.

The evidence in this case appears to be sufficient to sustain the judgment, especially in view of the rule that this court will not disturb the verdict of a jury where there is a substantial conflict in the evidence on which the verdict is based.

The company requested an instruction as follows:

“If you find that the plaintiff was damaged by the waters of irrigation ditches of settlers or seepage water, combined with the water of the defendant, then the defendant would be liable only for the proportionate amount of damage actually caused by the waters from the defendant’s own ditch.”

The court gave in lieu thereof the following instruction:

“The defendant would not be responsible for damages caused to the plaintiff’s crops by reason of rains, cloudbursts or any other natural causes, nor would it be responsible for any damage due to water being discharged upon the plaintiff’s lands, if there was any discharged thereon, through the irrigation ditches or canals of individual settlers over which the defendant had no control. Nor would it be responsible for any damage caused by seepage water due to the irrigation by the settlers of their respective lands. The defendant is liable, if at all, only for such damage as you may find it actually caused to plaintiff’s crops through negligently allowing waters of the Pórtneuf river, brought through its laterals for irrigation purposes, to escape upon plaintiff’s lands.”

The instruction given, by the court correctly states the law, and was substantially the same in legal effect on the point wherein complained of as the instruction requested by the irrigation company which was refused and which refusal the company assigns as error.

There is no reversible error in the trial court’s rulings upon the admissibility of evidence.

The judgment of the district court is therefore affirmed. Costs awarded to respondent.

Sullivan, C. J., and Morgan, J., concur.