(Dissenting with Comments):
For the following reason, I cannot agree with the main opinion. The facts in this case are clear, and need not be set out again.
The opinion and the trial court are correct in requiring plaintiff to shoulder the added costs of maintenance because of plaintiff’s unilateral acts causing the ditch *885to deteriorate; however, both fail to clarify defendants’ statutory duty as the owner of the easement to maintain the ditch. 73-1-8, U.C.A. (1953) provides:
Duties of owners of ditches — Safe condition — Bridges. —The owner of any ditch, canal, flume or other watercourse shall maintain the same in repair so as to prevent waste of water or damage to the property of others, and is required, by bridge or otherwise, to keep such ditch, canal, flume or other watercourse in good repair where the same crosses any public road or highway so as to prevent obstruction to travel or damage or overflow on such public road or highway, except where the public maintains or may hereafter elect to maintain devices for that purpose.
As owner, defendant had a clear duty to maintain the ditch both before and after it was relocated by plaintiff. Although plaintiff had no right to unilaterally increase defendant’s burden of maintenance, and defendant cannot be said to have acquiesced to that extent, the statutory duty of maintenance did not shift to plaintiff. It remains with defendant, according to the clear legislative intent.
The trial court decreed in its judgment that defendant “is not obligated to restore the chain link fence . . and that “defendant shall be responsible to maintain the ditch in the same manner and fashion as it was called upon to do when the ditch was in its original location . . ” This language directly contradicts the statutory mandate requiring the owner to maintain the ditch in such repair as to avoid waste and damage to property.
The judgment of the trial court should be modified to require defendant to perform all necessary maintenance in accordance with the statute. Defendant should then be allowed to recover from plaintiff the costs associated with defendants’ increased burden of maintenance.