Williams v. Fresno Canal & Irrigation Co.

McFarland, J. —This action was brought to recover damages for wrongfully, digging, plowing, and scraping away the soil of plaintiffs’ land, and for an injunction against continuing the said alleged trespasses. The jury returned a verdict for plaintiffs in the sum of $750, for which judgment was entered. Defendant appeals from an order denying a motion for a new trial.

1. The main point urged by appellant is, that the trial court erred in denying a motion for a nonsuit, made upon the ground “ that no evidence has been adduced connecting the Fresno Canal and Irrigation Company with the alleged trespass set out in the complaint.”

The appellant, a corporation, owned a canal running along the northern side of respondents’ land; and for the purpose of raising and otherwise improving the canal, the top soil of respondents’ land was plowed up to an average depth of about one foot, and over a space about sixty feet wide and a quarter of a mile long, and scraped off and piled up on the bank of said canal. Thé work by which this was .accomplished was actually done by one Applegarth, and appellant contends that it was not responsible for the result of such work. But it sufficiently appears from the evidence that one Manuel was the surveyor of the appellant, regularly employed at a monthly salary, and that it was his business to have the work done on the canal; that he made some kind of contract. (the particulars of which do not appear) with said Applegarth to do said work, and that by said contract said Applegarth was to take the soil from respondents’ land. When A makes an independent contract with B, by which the latter is to do for the former a piece of < work in itself harmless, and B does the work so carelessly or unskillfully as to injure a third «party, A, as a general rule, is not liable. But when the contract is in [16]its very nature and necessarily injurious to a third party, then the doctrine of respondeat superior applies. In such a case the injury does not result from the manner in which the work is done, but from the fact that it is done at all. In Boswell v. Laird, 8 Cal. 469, 68 Am. Dec. 345, frequently cited as a strong case against the liability of principals, the court, by Judge Field, says: “If the mode and manner which constituted the defect by which the injuries complained of were occasioned had been inherent in the plan, and this plan had been devised by Laird and Chambers, which the contractors were engaged to carry out, then liability would attach to Laird "and Chambers.” In the case at bar, the carrying away of respondents’ soil was the very thing contracted for; and it inherently and necessarily caused the injury complained of.