North Sterling Irrigation District v. Dickman

Gabbert, C. J., delivered the opinion of the court. Defendant in error, plaintiff below, brought an action against plaintiff in error as defendant, to recover damages. The complaint contained two causes of action. The first was for loss of crops for the years 1910 and 1911, and the second for injury to his land, as the result of seepage from a ditch constructed and operated by1 defendant. The jury returned a verdict in favor of plaintiff, assessing his damages on the first cause of action at $404.50, and on the second, in the sum of $6,000.00. By the first count it was alleged in substance; that the plaintiff was the owner of an eighty acre tract; that defendant so constructed its ditch on adjacent' lands above and higher than plaintiff’s land as to obliterate and destroy the laterals by which his land was supplied with water for the purpose of irrigation, by reason of which plaintiff failed to receive sufficient water for the irrigation of his land during the years 1910 and 1911, whereby the crops thereon for these years were destroyed, to his damage in the sum of $1,500.00. The court instructed the jury that if they found from the evidence that any damage was occasioned to the growing crops for which defendant was liable under the first cause of action, the measure of such damage would be the reasonable value of the crops at the time the damage occurred, and in the condition they then were. Counsel for defendant insist this instruction was erroneous, because the measure of damages was the rental value of the land. It appears that plaintiff was in possession, of the land, and planted crops thereon which did not fully mature for lack of water. Had he been deprived of the entire use of the land, the rental value might have been the proper measure of damages, but such is not the fact in-this case. Northern Colorado Irrigation Co. v. Richards, 22 Colo. 450, 45 Pac. 423. [171] By the same instruction the court further advised the jury in substance, that all evidence as to the probable maturing of the crops, the cost of harvesting, and the probable yield thereof; the climatic condition of the seasons, and the 'condition and yield of crops on adjacent lands for the same years, should only be considered in so far as they assisted in determining the value of the crops as above mentioned. Evidence of the character mentioned by the above instruction was introduced over the objection of defendant, and it is urged that the jury in assessing damage to the crops, instead of limiting it to the value of such crops when destroyed, were permitted to go into the realm of conjecture, by determining what their value would have been had the supply of water necessary to mature them not been intercepted by the defendant. In the circumstances of this case we think the objection is not tenable. In the course of the trial, when evidence of the above character was being introduced, the court ruled that it was competent for the purpose of establishing what the crops were worth at the time they were destroyed, but not to show what kind of crops would have matured. From this ruling in connection with the instruction as a whole, we think the jury understood that in assessing damages, the value of the crops at the time they were destroyed was the criterion by which to ascertain the damages in this respect. In brief, the two propositions urged by counsel for defendant on the subject of damage to the crops are, first, that the rental value of the land was the proper measure, and second, what the crops would have been worth if the supply of water had not been cut off was not. On these questions we hold that the rental value of the land was not the proper measure of damages, and that by the ruling and instruction the jury understood the value of the crops at the time they were destroyed constituted the damages to be assessed. Further than this we do not express any opinion. In the second cause of action it was not alleged that negligence of the defendant in constructing, maintaining172 or operating its ditch caused seepage to the land of plaintiff. A general demurrer was interposed by defendant, and overruled, and the court instructed the jury that it was not necessary for plaintiff to allege or prove negligence on the part of defendant, either in the construction or operation of its ditch. The defendant had the right to construct the 'ditch on the land occupied for that purpose. By statute it is provided that the owner of a ditch for irrigation purposes shall keep it in good condition, and carefully maintain its embankments, so that water therefrom shall not damage the premises of others. Sections 993, and 3233, R. S. 1908. These statutory provisions do not make the owner of a ditch absolutely liable for damages, but liable only for negligence. In other words, the owner of a ditch is not liable for damages as the result of water seeping therefrom, unless it appears that such seepage was caused by the negligent construction or operation of the ditch. City of Boulder v. Fowler, 11 Colo. 396, 18 Pac. 337 ; Grand Valley Irr. Co. v. Pitzer, 14 Colo. App. 123, 59 Pac. 420 ; Middelkamp v. Bessemer Irr. Co., 46 Colo. 102, 103 Pac. 280, 23 L. R. A. (N. S.) 795 ; Greeley Irr. Co. v. House, 14 Colo. 549, 24 Pac. 329 ; Garnet Co. v. Sampson, 48 Colo. 285, 110 Pac. 79, 1136 ; Platte & Denver D. Co. v. Anderson, 8 Colo. 131, 6 Pac. 515 ; Denver City I. & W. Co. v. Middaugh, 12 Colo. 434, 21 Pac. 565, 13 Am. St. Rep. 234. The same rule has been announced in other jurisdictions. Fleming v. Lockwood, 36 Mont. 384, 92 Pac. 962, 14 L. R. A. (N. S.) 628, 122 Am. St. Rep. 375, 13 Ann. Cas. 263 ; Howell v. Big Horn Basin C. Co., 14 Wyo. 14, 81 Pac. 785, 1 L. R. A. (N. S.) 596. The construction and operation of the ditch by defendant was a lawful enterprise, expressly authorized by the statutes of this state. It had the right to construct it upon the land it occupied, and as its liability for seepage therefrom is fixed by statutory provisions, which from the authorities cited, do not make it responsible for damages as the result of such seepage, except for negligént construction or operation of the ditch, the demurrer to the second [173] cause of action should have been sustained, and it was error to instruct the jury that it was not necessary to prove negligence on the part of defendant. Counsel for plaintiff insist that by virtue of section 15, article 2, of the Constitution, which provides: “That private property shall not be taken or damaged for public or private use without just compensation,” he is entitled to recover without alleging or proving negligence in the construction or maintenance of the ditch. That, provision refers, and is limited to proceedings in eminent domain, or to cases where injury results by reason of the taking of property in which the abutting owner has an interest. Its purpose was to require compensation to be paid the owner of land taken in such cases, not only for the land actually, taken, but for damages to the residue. City of Denver v. Barer, 7 Colo. 113, 2 Pac. 6. In eminent domain proceedings all damages, present and prospective, that are the natural incident of the improvement for which the land is taken are to be assessed, which in case of lands taken for the construction of a ditch includes damages to the residue likely'to occur by seepage from such ditch. Denver City I. & R. Co. v. Middaugh, supra; Farmers R. & I. Co. v. Cooper, 54 Colo. 402, 130 Pac. 1004. The action at bar is not one. in eminent domain, consequently the rule announced for damages for seepage in such a proceeding does not apply. Should the constitutional provision under consideration be given a literal and wholly unqualified construction, it would result in requiring one to so use his property as not to inflict any injury or inconvenience on another, and that if he did not he must respond in damages to that other. Denver Circle & R. Co. v. Nestor, 10 Colo. 403, 15 Pac. 714. It is next urged that the court erred in instructing the jury on the-measure of damages for seepage, it being contended that the true measure is the cpst of restoring the land to its natural condition, by a proper system of drainage, if it can be so restored. This is contrary to the decision [174] of this court in Mustang Reservoir, C. & L. Co. v. Hissman, 49 Colo. 308, 112 Pac. 800, in which it was held that the measure of damage for injury to land, on account of being covered with debris, is the difference between the value of the land immediately before and immediately after it was so injured, but that the reasonable cost of restoring it to its original condition was proper to consider in ascertaining its value after the injury occurred. It is also claimed that the damages awarded by the jury, under the second cause of action, are excessive. As the judgment must be reversed, and 'the cause remanded for a new trial, it is unnecessary to consider this question. In our opinion the claim that plaintiff did not prove a title which entitled him to recover damages for permanent injury to the land is without merit. During the trial it developed that the land was mortgaged. Defendant moved for a directed verdict, based upon the ground that the mortgagee had an interest in the premises. This motion was overruled. The defendant by answer should have set up the existence of the mortgage, and asked to have the mortgagee made a party before it is in a position to raise the question that he was a necessary party. Without deciding the question, because not raised, the court might have made an order touching the disposition of the sum recovered, which would have afforded the defendant adequate protection had it so requested. Elvins v. Delaware & A. Tel. & Tel. Co., 63 N. J. L. 243, 43 Atl. 903, 76 Am. St. 217. The original opinion is withdrawn, the judgment thereon vacated, and the judgment of the District Court on the first cause of action is affirmed, and as to the second, reversed, and the cause remanded for further proceedings under the second cause of action, in harmony with the views expressed in this opinion. Plaintiff should be permitted to amend his second cause of action if so advised. [175] Judgment Reversed in part and Affirmed in part. Decision en bane. Mr. Justice Scott and Mr. Justice Teller dissent.