McPherson v. Alta Irrigation District

Ditch of Irrigation District Crossing Creek—Judgment for Waste-way—Noncompliance—Obstruction With Boards—Damages for Overflow—Injunction.—Where plaintiff’s predecessor in interest had obtained a judgment requiring an irrigation district, the ditch of which crossed Sand creek, forthwith to place on the upper and lower side of the ditch a wasteway one hundred feet wide, for the reception and flow of said creek in time of high water, and it failed to comply with said judgment, but made the wasteway only forty feet wide on the upper side, and twenty feet on the lower side, and obstructed the lower side with boards, causing an overflow on plaintiff’s land, to his damage in the sum of $600, he is entitled to judgment therefor, and to enjoin the obstruction of the wasteway with- boards.

3b.—Double Violation of Right by Irrigation District.—The evidence being sufficient to show that the overflow of plaintiff’s land, and the damage to his trees, was caused by the acts of the irrigation district, such acts were not only clearly in violation of the valid order of the superior court, but were also in noncomplianee with the statutory duty imposed upon it by section 38 of the Wright Act, requiring its board, when the route of its canal crosses any stream of water, to “restore the same when so crossed or intersected to its former state as nearly as may be, or in a sufficient manner not to have impaired unnecessarily its usefulness.”

Id.—Just Judgment.—The injury to plaintiff being the direct result of a breach of obligation on the part of the irrigation district and its board of officers, defendants, and the evidence showing that the award of damages was not excessive, the judgment is manifestly just, and should be upheld, where no prejudicial error appears or is pointed out in the record.

Id.—Injunction Impairing Usefulness of Canal—Res Adjudicata.— The question whether the injunction to prevent obstruction of the wasteway with boards will impair or destroy the usefulness of the canal was determined by the former adjudication, the judgment in which is conclusive between the parties to this proceeding.

Id.—Findings Supported by Evidence.—It is held that all of the findings in favor of the plaintiff and against the defendants are supported by the evidence.

Id.—Peaceable Possession of Defendants—Absence of Evidence or Plea.—Where there is no evidence to show that the ditch of the irrigation district had been permitted peaceably to remain in the condition shown by the evidence when the injuries were committed, and there is no plea on that subject, an interruption of possession could neither be proved by plaintiff in chief, nor in rebuttal, there being nothing to rebut. If defendants had desired to rely upon peaceable possession, they should have put it in issue.