Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Malmstrom v. People's Ditch Co.

December 31, 1914

A. A. MALMSTROM AND JOSIE MALMSTROM (HIS WIFE), RESPONDENTS, V. PEOPLE'S DRAIN DITCH COMPANY (A CORPORATION), APPELLANT.


For former opinion, see 32 Nev. 246.

Summerfield & Curler, for Appellant.

C. R. Lewers, for Respondents.

By the Court, Talbot, C. J.:

After reargument and further consideration we feel constrained to adhere to our decision as originally rendered in this case. Under the evidence disclosed by the record and the facts appearing therefrom, as detailed in the opinion (32 Nev. 255-259, 107 Pac. 98), we are unable to escape the conclusion that the damage sustained by the plaintiffs was caused by their own acts and the fact that during the irrigating season the water percolated near the surface of the ground on their lots and in that vicinity, regardless of the ditch of the defendant. From the testimony of

the plaintiffs it appears that they narrowed and deepened the ditch for a short distance on their land and leveled their land adjoining the ditch. The making of the ditch deeper on their lots than it was a little lower down would not materially increase its capacity, while narrowing it decreased its capacity. The facts that the water flowed over a break in the bank of the ditch lower down and stood from the break over the land away from the ditch, and up to and over the banks of the ditch on the plaintiffs' lots, and that the water did not run over the banks on their lots before they disturbed the ditch, indicate that they lowered the banks.

[37 Nev. 468, Page 470]

As the damage resulted from these conditions, which were caused by the plaintiffs, and from the water which percolated through the ground in the vicinity of the lots, so far as the record shows the defendant is not liable for damages.

The judgment will stand reversed and the cause is remanded for a new trial.

19141231

© 1998 VersusLaw ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.