Clear Creek Land & Ditch Co. v. Kilkenny

Conaway, Justice. Defendant in error brought his action as plaintiff in the court below to recover damages caused by plaintiff in error in constructing, enlarging and maintaining an irrigating ditch across land of defendant in error. His alleged cause of action sufficiently appears from the following allegations taken from his petition: “That on or about the 10th day of May, A. D. 1884, the defendant constructed or caused to be constructed a certain irrigating ditch or canal through the lands of plaintiff herein-before described, and without the consent of said plaintiff, which ditch or canal is about the dimensions as follows, to wit: width on the bottom six feet, depth two feet. That afterwards and on or about the 12th day of May, A. D. 1887, the said defendant while the said plaintiff was the owner of and in possession of said lands and premises, without his consent and contrary to his instructions and against his protest, entered upon the lands of this plaintiff and enlarged the said ditch making the said ditch 7 feet on the bottom, 12 feet wide on the top and thirty inches deep and enlarging it to its present carrying capacity, which is nearly double its former capacity, and ever since and now has maintained said irrigating ditch across the land of said plaintiff hereinbefore described and without having any authority or license from plaintiff so to do.” The statement of damages appears from the following language of the petition: “That the said plaintiff has already suffered damage by reason of the construction and enlargement of said ditch to the amount of two hundred dollars in the loss of crops, and his property has further been depreciated to the amount of $1,250 thereby.” The defendant (Plaintiff in error) answered denying its liability, and there was a trial to the court, a jury being waived. The trial court finds: [43] “That the said plaintiff is entitled upon the pleadings and the proof herein to $100 his damages against the said defendant on account of the construction, operation and maintenance of said defendant’s ditch across plaintiff’s said land; also to $625.00 his damage against said defendant sustained hy reason of seepage from said defendant’s ditch upon the said lands of said plaintiff.” And this damage is stated to be “in lieu of compensation for the right of way of said ditch through the plaintiff’s said land, as the same is now constructed, and in lieu of the injunction prayed for in plaintiff’s petition to restrain the defendant from the maintenance of said ditch in its present capacity as now carried on and operated.” A question is raised in argument as to the sufficiency of the petition to sustain these findings and the resulting judgment. The language as quoted ahoye is certainly broad enough to cover the damages allowed. It is urged that part of the damages allowed is for land taken as right of way and that there is no evidence showing the value of such land. As to this it is to be said there is evidence tending to prove all the damage allowed and more. This court cannot assume that the trial court allowed damage not proven and refused to allow damage proven. It is further urged on behalf of plaintiff in error that it acquired the right of way for its ditch oyer the land now belonging to defendant in error when this land was public land of the United States, and that the right and interest of defendant in error in and to the land is subject to this right of way. The evidence does not sustain this contention. The inception of the water right of plaintiff in error, without which no right of way for the irrigating ditch to carry the water could exist, arose hy appropriation of the water hy plaintiff in error on May 10, 1884. At that time and for months before defendant in error was in lawful possession hy virtue of an entry under the laws of the United States for the reclamation of desert lands. It was not public land. Defendant in error in 1886 relinquished this entry and at the same time made a homestead entry of the same land. It is claimed that on the relin [44] quishment of the desert land-entry the -land •'became, public land of the United-States, and,-a .right oí pray at .once vested in plaintiff in error for its ditch-under the laws ;pf. Congress giving right of way for such ditches; over the public, lands. As to this it is to be observed .that-the relinquishment-of. the desert entry and the initiation of the homestead entry .were contemporaneous. There was no interval of time when de-? fendant in error was not lawfully!in- possession, of- the land and entitled to the use and profits-thereof; Besides,.the evidence tends, to prove that the damage -proven, and for the recovery of which this action .was-brought, resulted from the enlargement of the ditch in 1887. - .If plaintiff- in error ever acquired the right of way for its ditch as constructed in 1884, that would give no . right to. enlarge the ditch to-.the damage df defendant in error in 1887. -.For such-, damage;plaintiff in error would be liable. ■ Rylands v. Fletcher, 1 L. R., 3 Ex., 352; Sylvester v. Jerome (Colo.), 34 Pac., 760; Parker v. Larsen, 86 Cal., 236; Pixley v. Clark, 35 N. Y., 520; Cahill v. Eastman, 86 Minn., 324; Mears v. Dole, 135 Mass., 508; Sturr v. Beck, 133 U. S., 541; Darlington v, Painter, 7 Pa. St., 473;. R. R. Co. v. Murdock, 68 Ind., 137; Washburne Ease. & Serv., Sec. 19 and 56. . The judgment of the' district court is affirmed,.. G-ROesbeck, • C. J., and Clark, J., concur.