I am unable to agree fully with the prevailing opinion and judgment. I see no reason for reversing the plaintiff's judgment for damages. That judgment as determined by the majority, is within the amended pleadings. I think the judgment is also supported by ample evidence. It was clearly proved that the defendants conducted water in a ditch which was constructed through loose sand and gravel, incapable of holding water, and took no steps to prevent or control seepage therefrom, and that the water seeped and escaped from the ditch to the plaintiff's land, destroying his crops and injuring his house and cellar. That this constitutes negligence has been decided by our own and numerous other courts. Jensen v. Davis Weber Counties CanalCo., 44 Utah 10, 137 P. 635; Turpen v. Turlock Irr. Co.,141 Cal. 1, 74P. 295; Tormey v. Anderson-Cottonwood Irr. Dist.,53 Cal. App. 559, 200 P. 814; Shields v. Orr Extension DitchCo., 23 Nev. 349, 47 P. 194; Calvert v. Anderson, 73 Mont. 551,236 P. 847.
The proposition that the plaintiff's judgment for damages cannot stand because he refused to permit defendants to dig a drain upon his land to dispose of the leakage and seepage from defendants' ditch is, in my opinion, erroneous and against well-settled principles. The case is not within the doctrine that a plaintiff cannot recover for consequences that he could avoid by the exercise of reasonable precautions or ordinary care. The limitations of that rule and its inapplicability to cases like the one under consideration are well stated in McCarty v.Boise City Canal Co., 2 Idaho 245, 10 P. 623, as follows:
"The theory and claim of defendant is that the plaintiff was under a legal obligation to dig a ditch upon her own premises, if it could be done at a small expense, and thus conduct the said seepage from defendant's ditch off from her land. If this be true, then it results *Page 319 that ditch owners have such a dominion over the lands through which their ditch is located as gives them not only a right of way for lateral ditches to conduct off water escaping from their main ditch through the adjoining land, but also that such escape ditches shall be maintained by such adjoining owners, providing that it can be done at a small expense. We do not understand that the doctrine relied on can be extended so far. The plaintiff is entitled to control her own premises. [Citing cases.]
"We understand the rule to be that, where one person suffers injury by the carelessness of another, occurring unexpectedly, and in a transitory manner, the one so suffering must go to some trouble to avoid or lessen the damage, if a temporary expedient or slight expense will do so; but, if the one whose carelessness or negligence causes a continuing injury to another, having knowledge of the evil and the cause of it, deliberately stands by, having an equal opportunity to prevent the damage as the one suffering it, and permits it to continue without an attempt to prevent it, he cannot avoid his responsibility by showing that the one injured might have avoided the damage by a slight expense." [Citing cases.]
This case is approved and followed by the Supreme Court of Nevada in Shields v. Orr Extension Ditch Co., supra.
In Waters v. Kear, 168 N.C. 246, 84 S.E. 292, the syllabus is:
"The owner of land on which surface waters were wrongfully diverted by defendant is not required by law to permit defendant to dig a ditch through the land, or to dig the ditch himself in order to lessen the damages caused by the wrongful diversion."
See, also, Cardwell v. Norfolk W. Ry. Co., 171 N.C. 365,88 S.E. 495; Borden v. Carolina P. L. Co., 174 N.C. 72,93 S.E. 442.
In Norfolk W. Ry. Co., v. Amicon Fruit Co., 269 F. 559, 14 A.L.R. 547, the Circuit Court of Appeals, Fourth Circuit, affirmed a judgment for $7,000 damages suffered by plaintiff by reason of water leaking from defendant's pipe line into plaintiff's storage basement, notwithstanding a showing that the plaintiff at a cost of some $250 could have constructed a drain from its basement to a public *Page 320 sewer and thereby avoided in the main the injury complained of, citing Pixley v. Clark, 35 N.Y. 520, 91 Am. Dec. 72, where the court said:
"The defendants also insist that the injury might be remedied by the plaintiff, at small cost, by digging a drain along the embankment. If this were true, he is not bound to do it. As the defendants caused the damage, without authority, and for their own benefit, they should find the remedy at their own expense."
It may be further stated that the question is not presented here by any appropriate exceptions or assignments of error, and is not even urged in appellants' brief. No complaint is made of the amount of damages found, and, for all that appears in the record, the trial court may have materially reduced the damages suffered by reason of the plaintiff's refusal to permit the drain to be constructed.
I see no sufficient reason for reversing the judgment for damages. I think the injunction should not have been issued. The evidence was that from natural causes the leakage and seepage from the canal would gradually diminish by the use of the ditch. Nothing appeared to show that plaintiff could not have adequate relief at law for future injuries. The threatened injury to plaintiff, under the circumstances, did not warrant the issuance of an injunction. I can see no propriety or necessity for granting a new trial. In my opinion, the judgment for damages should be affirmed and the injunction dissolved.