Harvey v. HAIGHTS BENCH IRRIGATION COMPANY

CROCKETT, Justice

(concurring).

I agree to affirming the judgment. It appears to me that there is no disagreement upon the. proposition that a ditch owner’s easement includes the right to do what is reasonable and necessary to take care of the ditch; and that he has the duty tó do. so to protect the servient estate from damage; and further that he may make reasonable *70improvements in the ditch for the purpose of more efficiently transporting and conserving water. This may he done even though it has the effect of removing seepage or drainage waters from which the servient estate may have derived incidental benefits. The evidence here demonstrates that the defendant company transcended the precepts above mentioned. The right of the ditch owner, in making, improvements, does not go so far as to permit him to take more land, nor to go upon the land in any such a manner as described in the main opinion. Therefore the issues of actual and punitive damages were both properly submitted to the jury. I likewise agree that the injunction was properly refused.