Clear Creek Land & Ditch Co. v. Kilkenny

Pleading — Eight of Way fob Ditch — Enlaegement—Damages to Land by Seapage — Public Lands. 1. In an action for damages to land arising on account of the construction and maintenance of an irrigating ditch, caused by the construction of said ditch and also by means of the seapage of water through the soil, an allegation in the petition that the plaintiff has suffered damage by reason of the construction and enlargement of the ditch in a specific sum in loss of crops, and that his property has been further depreciated to a certain amount thereby, is sufficient allegation of damage. 2. The land owner in possession of the land undér a desert entry, at the inception of the water right- of the ditch owner did not lose Ms claim for damage for tlie right of way taken for the ditch because he thereafter and contemporaneously relinquished his said entry and filed upon the land as a homestead. There was no interval of time when he was not in lawful possession of the land, and entitled to' the use and profits thereof. S. If right of way, for the ditch, was acquired as first constructed, that would give no right to subsequently enlarge the ditch to the damage of an owner of lands through which it passes. For such damage the ditch owner would be liable.

ERROR to District Court for Johnson County, Hon. John W. Blake, Judge. Orrin C. Kilkenny brought this action to recover damages for the construction of an irrigating ditch, without his prior consent, across lands claimed to be owned by him, and for injury to -his said lands on account of the Seepage of water from the ditch. The prayer of the petition was: 1. For $1,450 damages. 2. Injunction against maintenance of the ditch as enlarged, or in lieu thereof, further damages. 3. Such further relief as plaintiff might he entitled to. There was considerable testimony on both sides ■ respecting whether or not the seepage came from the ditch .of defendant. There was another ditch in the neighborhood, and it was claimed on behalf of defendant that the damage by water was not caused by its ditch or the water flowing therein. The damage to the land was caused by the formation of alkali, alleged to result from the presence of an unusual and injuri-. ous quantity of water percolating through the soil. About ¡November 1, 1883, the plaintiff entered the lands under the Desert Land act of the United States. He failed to conduct water upon the land, and in the fall of 1886 he relinquished that entry and filed a homestead, making final proof in February, 1889. It was claimed by defendant that not later than the spring of 1883 a survey was made for its ditch, which ran across a corner of- the land in question; that, in 1884, about the time tlie ditch was completed, the owners formed the corporation, which succeeded to the rights of the individuals constructing the ditch. Some of the work was claimed to have been done in 1883 prior to the inception of any right in Kilkenny; hut it was not clear whether the work had reached his land at the time he went into possession. Defendant also claimed that the evidence did not establish that the water came from its ditch from any point on the plaintiffs land, even if it had its source anywhere in said ditch. Judgment went for plaintiff. Defendant prosecuted error. The right of way for ditches across public lands is acknowlr edged by Act of Congress (U. S. Rev. S., see. 2339). Kilken-ny obtained title to the land under a homestead filing made in 1886, after the ditch was constructed across the land. Whatever right he had formerly obtained under the desert, entry had been relinquished. The ditch was, therefore, lawfully built over public lands of the United States. If- a settler is in possession the damages he is entitled to are only such as affect his possession, not for the land itself, under Sec. 2339 above. Settler means, also, one who is rightfully on the land. The enlargement of the ditch did not afford any right to damage for right of way. That had already been acquired. In this action the court had no authority to render judgment for any consequential injury. The action was for trespass in crossing the land. Such injuries as those caused by seapage after ditch is built are not proper elements of damage in such an action as this. (Lewis on Em. Domain, 154, 482, 565, 561, 574; Bailey v. Miller, 3 Hill, 531; Jones v. R. R. Co., 68 Ilk, 380.) Where a ditch is lawfully constructed, no liability to respond in damages for seepage exists, .except in case of negligence. (1 Addison Torts, 3; Cooley on Torts, pp. 80, 81; Losee v. Buchanan, 51 H. Y., 476; Marshall- v.. Welwood, 38 U. J. L., 339; Proctor v. Jennings, 6 Nev., 83; Campbell v. Bear River, etc., Co., 36 Cal., 679; Todd v. Coehell, 17 id., 97; Wolfe v. Water Co., 10 id., 541; Hoyt v. Hudson, 27 Wis., 656; Livingston v. Adams,-.8'Cow., 175; Elster'v;. Springfield,, 49 0. St., 82; Hazard.Powder Co. v. Volger, 3 Wyo-.;. 189.) Statutes which provide for similar liability in the absence of negligence have uniformly been held unconstitutional. - (Zeig-ler v. R. R. Co., 58 Ala., 594;.R. R.. Co. -v.-Lackey-, 78 .Ill.; 55; Cateril v. R. R. Co,, 2.Idaho, 540;-Jensen v. R. R.: Go,, 6 Utah, 253; Bielenberg, v. R. R-. Co., 8.Mont,, 271; Ry. Co. v..Smalley, 1 Wash. St., 206; Hast Kingston v¡ Toole, 21 H.- II.,..57; R. R. Co. V; Batty, 6 Keb:, 37; R. R. Co. v..Borge.ons;66 Miss., 3; see Sec. 535 Rev. Stat. as to liability of ditch companies.) Crossing the lands with the ditch-was- a lawful-act- even without compensation. It is absolutely-impossible, to. determine from the testimony that the damage arose- from the- ditch .in question. There, is no .basis in the evidence for any -allowance-' for right of way. The amount of ground taken .was .not proven, nor its-value, -or .what, the .damage was .to- the claim-, ant’s .ownership... The damages awarded -are- excessive.;,. . The right of way-for the ditch as originally .constructed, would not inure to the benefit .-of. any-enlargement. (Dar-lington v. Painter, 7 Pa. St., 473;-. Washburn’s-Easements, p.-55, 155; LaPayette, Ete.; v. Murdock; -68 Ind., .137.) The enlargement, and the -operation of the .ditch-as so enlarged,, was without right, and was a-trespass, and therefore the ditch owner is-responsible for all injuries-to‘the land owner.- Even if rightful, a foreign substance — water—was brought upon -the right of way, by artificial means, likely-to -do-mischief to others, and the ditch owner was bound to take care of--it at his peril and see. that it did not injure his neighbor. ' (Eletcher v.-Hy-lands, L. R., 1 Exeh., 265; Rylands v. Fletcher;-3 -id., 352; Sylvester v. Jerome, 19 Colo., 128; Parker v. Larsen, 86 Cal.,. 236; Wilson v. Hew Bedford, 10.8 Mass.; 261;-- Mears v. Dole, 135 id., 508; Parker v. R. R. Co., 3 Cush., 107;- Pixley ,v. Clark,-35 H. Y., 520;- Boynton v.- Longíey;-!9 Uev.; 69; Og-burn v. Connor, 46 Cal.; 347;- Cahill v, Eastman; 18 Minn., 324; Knapheide v. Eastman, 20 id., 478; R. S., Sec. 1318; Wadsworth v. Ry. Co., 18 Colo., 600.)