Teeter v. Nampa & Meridian Irrigation District

AILSHIE, J. This action was instituted by the plaintiff for the purpose of securing judgment restraining and enjoining the defendant, the Nampa & Meridian Irrigation District, from maintaining a spillway in its canal and from using the same to turn out flood waters so as to flow over and across the plaintiff’s land. The court heard the proofs and rendered and entered judgment in favor of the plaintiff enjoining and restraining defendant from maintaining the spillway, as the same had been constructed in its canal, and from turning out the waters on to the lands of the plaintiff. Plaintiff owns a farm in what is known as Eight-mile Bottom, in the Boise Valley. The defendant is the owner of what is commonly known as the Eidenbaugh canal. This canal runs along and by respondent’s lands on the east side thereof, the canal being above the lands on the upper or higher lands. In this locality the canal crosses a series of draws or natural drainage basins, the principal ones of which are designated as Five-mile, Seven-mile, Eight-mile, and Ten-mile creeks. It appears that in the winter and early spring from January to March more or less flood water comes down these draws from the higher lands and flows over and across plaintiff’s land. The volume of water flowing down these draws varies according to the amount of snowfall and the rapidity of the break-up or thaw-out in the early spring, and is also governed by the amount of rainfall during these months. The flood of waters coming down these draws is sometimes of a very short duration, lasting only an hour or two. It seems that the water comes down these several [358] drainage basins, and when not controlled in any way spreads out over the lands of the plaintiff without doing any considerable damage. It appears that these floods have generally had a disastrous effect on the defendant’s canal, washing away the banks thereof and breaking down the canal for some distance. The defendant company conceived the idea of gathering the waters in the canal by having the banks on the lower side higher than those on the upper side and letting it all out at one place by means of a spillway which it constructed 16 feet wide. This resulted in pouring the water out in one volume through the spillway on to the plaintiff’s premises, and it was for the purpose of restraining and enjoining this action and the maintenance of the spillway •for this purpose that the present suit was instituted. The appellant company contends that all the flood water eoming down these draws or basins has been accustomed in its natural course to flow over and across the plaintiff’s lands, and that the appellant has in no way increased the volume or caused any more water to flow over the lands of the respondent than has usually flowed across those lands, .and that it is therefore not responsible, and should not be ■enjoined from maintaining its spillway in the bank of its •canal. The respondent contends, on the other hand, that the waters in their natural flow came down at least three ■different channels and spread out over the lands so that they •did no material damage to his farm, and that the injury and ■damage done him by the appellant consists in its collecting the waters from these several channels into the canal and then letting them all out at one place through the spillway; that by so doing the waters were poured out on his lands in one great torrent, thus washing out and cutting channels In his land and thereby doing him much damage. There can be no doubt but that the appellant is under no -obligation to collect these- flood waters and carry them off through its canal. It cannot be expected, or required to do so. The natural flood waters which gather in these draws and basins must necessarily flow down over the respondent’s land. It is clearly shown that the canal has not sufficient [359] capacity to carry off these waters. The respondent, on the other hand, has a right to insist that they come down in their natural channels or in such manner as not to augment the dangers and damages which they would ordinarily entail upon respondent’s land. 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 clearly just and equitable as between the canal owner and the land owner. Each must recognize and respect the rights of the other and at the same time each is entitled to the fair and reasonable enjoyment of his own property. The appellant should not be allowed to collect the entire volume of water and turn it out through one spillway and thereby increase the burden, dangers and damages such waters will cause to the respondent’s lands. (March 17, 1911.) The judgment should be affirmed, and it is so ordered. Costs awarded in favor of the respondent. Stewart, C. J., and Budge, District Judge, concur.