dissenting:
That it is competent for the general assembly to compel an owner of property, whether or not he is negligent, to respond in damages for all injuries resulting therefrom or caused thereby, in its construction or use, to property of others, in eases like this, there can be no doubt. ,And I am not prepared to say that the construction which, in the opinion of the chief justice* is put upon the section o-f the statute under consideration, if the same be wholly removed from other sections of the act of which it is a part, is not reasonable, or not one that the language naturally imports, or that the doctrine promulgated is not wholesome. The briefs of the immediate parties are helpful to us, and additional aid is furnished by an exhaustive brief filed in behalf of the Denver & Rio Grande Railroad Company, as amicus curiae, by its attorneys, who have ably argued to uphold the construction which the majority have placed upon this paragraph. It is with some reluctance that I dissent from the conclusion of - my associates, for whose judgment I entertain great respect,’ and were it not for previous decisions of the courts of this jurisdiction upon this, and analogous, statutes, which will presently be mentioned, I might agree with the majority. Counsel for appellant cite a number of au*298tliorities Tinder similar statutes which, as they claim, hold that they do not import an absolute liability, or constitute the person or corporation thereby affected an insurer. Among them are Sutton v. Catawba Powder Co., 56 S. E. 966; the text of Black’s Pomeroy on Water Rights, §§ 79, 80, 81; § 298, Gould on Waters; and §§ 163, 164 of Wiel on Water Bights in the Western States (2d ed.). As stated in the opinion of the chief justice, the precise question here decided, at least as specifically stated, may be one of first impression in this jurisdiction. Nevertheless, I think that this court and the court of appeals, in decisions involving similar questions, are committed to the holding that the general assembly by this statute did not intend to impose an absolute liability upon owners of reservoirs. Constitutional and statutory provisions quite as sweeping as 'this paragraph have, by the courts, been given a narrower construction than the literal meaning of the words at first flush indicate, but, in view of the object aimed at, as shown by the context, and’ the history attending their adoption, it was apparent that a somewhat restricted meaning was intended. A conspicuous example is the repeated announcement by this court that the constitutional mandate that private property shall not be taken or damaged, for public or private use, without just compensation, does not entitle an owner to recover damages for every possible injury to his property. The authorities are collated in City of Denver v. Bonesteel, 30 Colo. 107. I cite this, and refer generally to other similar instances, familiar to the profession, as justification for the pronouncements by the appellate courts of this jurisdiction upon this and our various ditch statutes, to which reference is now made. Sylvester v. Jerome, 19 Colo. 128, was an action for injunctive relief to prevent the flooding of plaintiff’s property by water *299from, defendant’s reservoir. After adverting to the general.rule that injunctive relief is not granted to stay a mere private nuisance, the court said that where great and irreparable mischief would result from the wrongs complained of and a suit at law would not afford adequate relief against future acts of a similar character, equity gives relief even against a mere private nuisance. Immediately following such statement, and in response to the argument that this rule as to a private nuisance was changed hy the statute which is considered here, the court pertinently said: ‘ ‘ The foregoing is simply an affirmation of a common-law principle. It was enacted in this state as part of an act with reference to irrigation. In this act the right is given for the construction of reservoirs for certain purposes, and the context indicates, we think, that the paragraph relied upon was inserted as a precautionary measure, under the apprehension that without it, it would he possible to place such a construction upon the act as would relieve owners of reservoirs from liability for leakage and overflow.”
Here then was a distinct announcement hy this court that the insertion of this paragraph was not, as claimed hy plaintiff here, for the purpose of imposing an absolute liability upon reservoir owners for all damages resulting from the leakage or overflow of the waters thereof, hut its obj'ect, quite the contrary, was to prevent a possible construction, which, without its presence, might relieve owners of reservoirs of any liability at all because the general assembly had expressly authorized the construction of reservoirs and prescribed safeguard's for their maintenance. Neither will it do to say that this announcement was obiter, for it was in response to a pertinent argument advanced in the case, and the decision in part was based upon it. Nor can it fairly *300be said that the common-law principle referred to is that enunciated in the Fletcher-Rylands case. That decision is not generally followed in tbe United States.—1 Thompson on Negligence, § 706. And it is not enforced in India — though a British possession, where, as in Colorado, reservoirs are a vital part of a system of irrigation.—Madras Ry. Co. v. Carvetinagarum, 30 L. T. N. S. (Zemindar) 770; 22 Week Rep. 865; 9 Jacob’s Fischer’s Digest 13395; 1 Mews English Case Law Digest 175; 14 id. 2031. Our court of appeals has repudiated it in Bishop v. Brown, 14 Col. App. 535, and this court has not, up to this time, recognized it as applicable to conditions in this state.—City of Greeley v. Foster, 32 Colo. 292; Caughlin v. Campbell-Sell Co., 39 Colo. 148. The reference evidently was to the common law, as applicable to conditions in Colorado, which, as applied to liability of reservoir owners, is not the principle declared in the Rylands case. If the common law, referred to therein, is the common law which Colorado, by statute, adopted, and which its courts enforce, then there was no necessity for passing this statute, and we are not needlessly to presume that our general assembly is engaged in useless legislation. In Ditch Co. v. Zimmerman, 4 Col. App. 78, there was before the court this reservoir statute. It declined to express an opinion as to whether an absolute liability was thereby imposed and it went only to the extent of saying that plaintiff thereunder is not required to allege or prove negligence. Prima facie at least a case was made when the damage and cause, by the breaking of the reservoir, are established. The Middaugh case, cited in the opinion, as I read it, is clearly against the conclusion'of the majority; but I do not pause to analyze it. We have several statutory provisions touching the liability of ditch companies for damages caused by the escape of water. *301Sec. 993 of the general incorporation act, Rev. Stats. 1908, reads: “Every ditch company organized under the provisions of this act shall be required to keep their ditch in good condition so that the water shall not be allowed to escape from the same to the injury of any * * * other property.” Sec. 3233: “The owner or owners of any ditch for irrigating or other purposes, shall carefully maintain the embankments thereof, so that the waters of such ditch may not flood or damage the premises of others.” Sec. 3238: ‘ ‘ The owner of any irrigating or mill ditch shall carefully maintain and keep the embankments thereof in good repair.” Sec. 3240: “Any person who shall willfully violate * * * the provisions of this act shall, on conviction thereof * * * be fined,” etc. While the language of the foregoing statutes concerning ditches is not the same as this sentence in relation to reservoirs, it is submitted with confidence that the liability imposed by the former upon the owner of ditches is just as extensive as the liability which is fastened by the latter upon owners of reservoirs. If, as these ditch statutes say, the owner of a ditch must carefully maintain its embankments so that the waters may not flood or damage ■ the premises of another, and must carefully maintain and keep the embankments thereof in good repair, and is required to keep the ditch in good condition so that the water shall not be allowed to escape from the same to the injury of any other property, or go to waste, and if he fails in these respects, he violates the law and is subject to a fine as for an offense, then, according to the reasoning of the main opinion, if water does escape from the ditch and flood, or damage, or injure the premises of another or go to waste, the ditch owner is liable civilly in damages, irrespective of the question whether or not he has been guilty *302of negligence in the construction or maintenance or operation of the ditch; for if he is guilty of a criminal offense if the water goes to waste, or escapes from its artificial channel, notwithstanding his utmost care, it necessarily follows that if thereby injury results to the property of another, he must respond in damages even though he has taken the greatest possible care to prevent it. The mere fact that it escapes, or wastes, is conclusive evidence of his liability. This would be the' construction upon the ditch statutes, under the reasoning in the majority opinion upon the language of the reservoir act, for, in legal effect, the liability of a ditch owner under ditch statutes is just as great as that of reservoir owners under the clause before us. And yet, this court and the court of appeals in a number of cases have held, in construing these very sections, that the liability of a ditch owner is not absolute, but is based upon negligence. In City of Boulder v. Fowler, 11 Colo. 396, in an opinion by De France, C., approved by this court, it was held that the care required of a ditch owner in this state in the construction and management of his ditch to avoid injuries to others, was ordinary care, such as a man of ordinary prudence and intelligence would employ under like circumstances to protect his property. In this case specific reference was not made to these statutory provisions; but it is not conceivable that the court was ignorant of their existence or intended to state the rule without reference to them. In Greeley Irrigating Ditch Company v. House, 14 Colo. 549, these ditch statutes imposing liability on the owner for consequential damages to others was expressly considered by the court, and the opinion, in commenting upon the instructions given by the trial court, clearly shows that the liability of the ditch owner rests upon negligence and that he is not *303an insurer. In Platt and Denver Ditch Co. v. Anderson, 8 Colo. 131, in an opinion by Stone, Justice, it was said: “Where a ditch exists by lawful authority, its proprietors are not liable for damages resulting from the existence of the ditch ipso facto merely, ’ ’ but the court said that, for the exercise of .the lawful powers which the statute conferred upon ditch owners in an improper, careless, or negligent manner, there was a remedy. Certainly this observation would not have been made if the liability was an absolute and unconditional one, as, in that case, the liability would attach regardless of negligence. In Grand Valley Irrigation Company v. Pitzer, 14 Col. App. 123, the court, by Wilson, Justice, (a case on the liability of a ditch owner for the escape of water from a ditch caused by an unprecedented flood), held that the owner was not liable. In reversing the case and remanding it for a new trial the court observed that at a subsequent trial the evidence might show some negligence on the part of the defendant sufficient to impose upon it some legal liability, thereby in legal- effect saying, in line with the other decisions already referred to herein, that if the liability exists at all, it is on the ground of .negligence. The general assembly has been in session many times since these declarations, but has not seen fit to enact a different rule.
It therefore appearing that our supreme court is committed to the ruling that this section of the statute was not intended to create an absolute liability, in which our court of appeals is disposed to concur, and that both courts have declared, under the ditch statutes, which in terms impose a liability just as broad, that the ditch owners’ full duty is discharged if he exercises due care, and that the legislative department, by not effecting a change by statute, has acquiesced therein, we should not, at this late day; in *304my judgment, even though, we do not entirely agree with the previous announcements, set them aside and adopt a different construction. Most of the existing large reservoirs in this state were built after these decisions were made, their owners doubtless relying on that reasonable safety of their large investments which our courts said their care in construction and operation would tend to insure. I recognize the impropriety of judicial shrinking from giving effect to the mandate of a valid statute merely because the judicial mind fears serious or disastrous results may attend its rigid enforcement. It is not that I anticipate such consequences from the vigorous execution of this section, with the interpretation here put upon it, though that is a circumstance which, in case of doubt, should be considered; but it is because the maxim stare decisis is a salutary principle not, to be lightly disregarded, and that decisions which have passed into rules of property ought not to be changed, if at all, except for the most imperative reasons, that I decline to join with my associates, who, I respectfully submit, have given too little attention to these benign principles of the law. I venture the assertion that our profession generally and owners of reservoirs have rightly supposed, from what our courts have hitherto declared, that no such burden rests upon the development of an important industry as the present announcement of my brothers says the general assembly manifestly intended to impose.