MacKay v. Breeze

I agree with the conclusions reached by Mr. Justice CHERRY that no sufficient reason is made to appear authorizing a reversal of the judgment awarding plaintiff damages.

The plaintiff was permitted to amend his complaint after the testimony was closed and during the time the trial court had the case under advisement. Allowing that amendment is held not to have been error. The allegations in the amendment to the complaint are:

"That said new ditch was carelessly and negligently constructed through gravelly, porous, sievelike materials, without making provision to prevent the water seeping and percolating through the sides and bottom thereof, and the water was turned therein by the defendants when said ditch would not hold or carry the same."

These allegations are in legal effect the same as the allegations charging negligence in the complaint in Jensen v.Davis Weber Counties Canal Co., 44 Utah 10, 137 P. 635. This court affirmed the judgment for damages in that action.

The third headnote to Tormey v. Anderson-Cottonwood Irr.Dist., 53 Cal. 559, 200 P. 814, is as follows:

"To knowingly construct a canal through loose sand or gravel incapable of holding water, without taking any steps to prevent or control seepage therefrom, constitutes negligence."

It thus appears that the complaint in this action, as amended, charges the defendants with negligence in the construction of the canal and in turning water into the same.

I do not understand, however, that the majority opinion holds or intends to hold that the complaint does not charge the defendants with negligence. It is stated in the opinion:

"It is plaintiff's contention that one who constructs a ditch through soil naturally incapable of holding water is bound to exert reasonable efforts to prevent seepage water from injuring the property of another and that a failure to do so constitutes negligence. We are of the opinion that this is a correct statement of the general rule of law as laid down by the authorities." (Citing cases.)

It is also said in the opinion:

"The evidence also shows that some seepage water from the new ditch seeped into the basement of plaintiff's house. There is also sufficient evidence in the record to justify findings that the seepage water from the new ditch caused injury to plaintiff's dwelling house as well as to his land and the crops growing thereon."

Further on in the opinion it is said:

"Plaintiff's evidence tends to support a finding that the new ditch was constructed through soil which was porous, and hence likely to and did permit the escape of considerable seepage water into plaintiff's property during the first year of its use and somewhat less during the second year."

It thus appears that the complaint charges defendants with negligence. The court's findings are to the effect that the negligence charged in the complaint was proven and that injury resulted to plaintiff by reason of such negligence. If the judgment awarding damages is to be reversed, it must necessarily be on some other ground rather than failure to charge or prove negligence and injury. I am unable to find any legal reason assigned in the opinion of the court why the judgment of damages should be disturbed.

It is also said in the court's opinion:

We are unable to ascertain from a reading of the evidence in this case just what reasonable efforts the plaintiff claims the defendants should, in the exercise of reasonable care, have exerted to prevent the escape of seepage water from the new ditch."

If by that statement it is intended to hold — and that seems the only reasonable and fair inference — that it was incumbent upon the plaintiff to allege and prove the act or acts that defendants should have done or performed to prevent the injury, then I am unable to agree that such is the rule of law required in charging or proving negligence. The negligence with which the defendants were charged was constructing the ditch through porous and gravelly material without making any provision to prevent the water seeping or percolating from the ditch so constructed. Such an allegation, as I understand the authorities, charges negligence.

I am not convinced that the court erred in the injunctive relief granted. The trial court in this case not only heard the evidence, but on at least two occasions viewed the premises, and his decree was made thereafter. From such inspection the court could see the nature of the soil and the general appearance of the surrounding premises, and thus determine what was required to safeguard plaintiff's premises from repeated injury by reason of the use of this canal for carrying water to defendants' lands and to the lands lying beyond and below defendants' lands.

In the course of the opinion in Stoops v. Pistachio,70 Cal. App. 772, 234 P. 423, it is said:

"Where a property owner by artificial means brings water upon his lands for purposes of irrigation, and allows a portion of such water to escape so as to injure the land of the adjoining owner, he is not only liable in damages for the injury caused, but an injunction will lie to prevent the continuation of such injury. Bacon v. Kerney Vineyard Co. [Kearney VineyardSyndicate], 1. Cal.App. 276, 82 P. 84; Kall v. Carruthers,59 Cal. App. 555, 211 P. 43. As said in the case last cited, to permit defendants to make their land profitable though it result in the utter destruction of the usefulness of plaintiff's land, would violate every principle of natural right and justice, and cannot be supported by judicial authority."