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McLeod v. Miller & Lux

July 1917


Appeal from First Judicial District Court, Lyon County; Frank P. Langan, Judge.

W. A. Massey, Edward F. Treadwell, Cheney, Downer, Price & Hawkins, and Charles B. Henderson, for Appellants.

Mack & Greene, for Respondent.

Samuel W. Belford, as Amicus Curiae.

By the Court, Coleman, J.:

This is a suit instituted by respondent against appellants to recover judgment for alleged damages in the sum of $48,450, and to obtain a decree of the court abating a certain dam in Walker River, known as the Spragg, Alcorn & Bewley dam, which, it is claimed, is responsible for the overflow of the Walker River, and the consequent damages. From a judgment in favor of plaintiff in the sum of $25,475 damages and a decree directing defendants to reduce the height of the dam, and from an order denying the motion for a new trial, this appeal is taken.

[40 Nev. 447, Page 469]

The plaintiff was, at the time the suit was instituted, and for a number of years theretofore, the owner of a ranch of 940 acres, through which the Walker River flows for a distance of over two and a half miles. Defendants own ranches on the river below the ranch of plaintiff. Between the years 1871 and 1873, one Mason, the then owner of the land upon which the dam is situated, and which is now owned by the plaintiff, erected, in conjunction with others, at and upon the extreme lower end of what is now plaintiff's ranch, the Spragg, Alcorn & Bewley dam, for the purpose of diverting the water from the river into a ditch for irrigation purposes. Almost a mile above the Spragg, Alcorn & Bewley dam there was erected in 1873 a dam known as the Merritt dam, to be used for the same purpose, which, though washed out in 1883, was rebuilt. Some distance above the Merritt dam, possibly from one-third to one-half mile, is the Perazzo ditch, which takes water from the river, and which, with the consent of plaintiff, was constructed in 1903. There are several other ditches, either on or just above the McLeod ranch, which take water from the river for irrigation. It also appears that the river, as it flowed through the ranch of plaintiff, was very crooked, and the plaintiff made several cuts for the purpose of straightening it. These cuts were through sandy soil, and, as a rule, were only about two feet wide; it being left to the river to wash out so much more of the soil as was necessary to carry the waters of the stream. The upper point of overflow, which is alleged to have caused considerable damage, was over two miles up the river from the Spragg, Alcorn & Bewley dam. The fall in the river is about 1 foot to the 1,000, which would make the bed of the river at the Spragg, Alcorn & Bewley dam about ten and one-half feet lower than at the upper point of overflow. Overflows from the river and upon plaintiff's land took place in the years 1862, 1868, 1876, 1881, 1884, 1886, 1890, 1902, 1903, 1904, 1905, 1906, and 1907. This suit is to recover for the damage alleged to have been caused by

[40 Nev. 447, Page 470]

the overflows in the years 1904, 1905, 1906 and 1907. It is urged by the appellants that the case should be reversed for the reason that it appears from the evidence that it was physically impossible for the Spragg, Alcorn & Bewley dam to have so affected the flow of the stream as to have caused the deposit of the silt, which was carried in suspension in the stream, as far up the river as the points of overflow. It is their theory that the dam would not affect the current of the river for a much greater distance than at the point where a horizontal line drawn from the crest of the water at the dam intersects the bed of the river. In other words, it is contended that, since the river has a fall of 1 foot to the 1,000, a dam one foot high would affect the flow of the river only for a little more than 1,000 feet up the river from the dam, a dam two feet high would affect the flow only a little over 2,000 feet up the river from the dam, and so on; and since the Spragg, Alcorn & Bewley dam, prior to 1903, was never more than four feet high, and at no subsequent time over five feet high, the flow of the stream could by no possibility be influenced above the Merritt dam. This theory not only appeals to the mind of the layman, but the appellants called several engineers, all of whom testified that the deposit of silt could not be affected to any appreciable distance above the point of intersection mentioned.

Prof. Thurtell, formerly of the University of Nevada, and some time state engineer, and now chairman of the Fourth Section Board under the Interstate Commerce Commission, after making a survey of the stream, testified that the deposit of silt would not be affected more than 200 feet above said point of intersection.

Mr. Hammond, the expert called in behalf of plaintiff, testified:

“Q. Now, then, assuming that the Spragg, Alcorn & Bewley dam is six feet in height, I am speaking now of the original bed of the river, where would that line, if drawn up the river, meet the original bed of the river? A. Six feet?

[40 Nev. 447, Page 471]

“Q. Six feet in height? “A. Six feet in height. Six thousand feet. * * *

“Q. Assuming that the dam was seven feet in height, how high up would it strike the bed of the river? A. Seven thousand feet, theoretically.

“Q. If the dam was seven and a half feet in height, how high up would it strike the bed of the river? A. Seven thousand five hundred feet.”

In opposition to the testimony of defendant's engineers, and the testimony of Mr. Hammond, just quoted, is the testimony of several ranchers who had lived in the community for a number of years. Witness Rallins testified, over the objection and exception of defendants:

“Q. Do you know how the water of the river came to overflow on those places along the ranch as you describe it? A. I do.

“Q. What was the cause of the overflow on the McLeod place? A. By building up the dam, causing sand and sediment in the river, and causing the river to overflow its banks.

“Q. What dam do you refer to? A. The Spragg, Alcorn & Bewley dam.”

The witness Martin testified, over the objection and exception of defendants:

“Q. What was the cause of the damage to the land? A. Well, the cause was, the river bed was full of sand, and the water had to flow out some place.

“Q. Do you know the cause of the filling of the river with sand? A. Yes.

“Q. Now, what was the cause? A. Well, from my experience on the river, I know that dams cause the sand to form in the river.

“Q. Now, as to the place, the particular place known as the McLeod place, what particular dam do you have reference to as having caused the deposit of sand? A. I have reference to the Spragg, Alcorn & Bewley dam.”

The witness Nichol testified, over the objection and exception of defendants:

“Q. Do you know what caused the deposit of sand in

[40 Nev. 447, Page 472]

the channel of the river above the Spragg, Alcorn & Bewley dam? A. Yes.

“Q. What was the cause of the deposit of sand in the channel of the river above the dam, and up as far as the ford at the McLeod house? A. The dam, the Spragg, Alcorn & Bewley dam.

“Q. Do you know what caused the overflow? A. The river not having the capacity to carry the water.

“Q. Why didn't have the capacity? A. The river filled up with sand.

Plaintiff testified, over objection and exception:

“A. Yes, I testified very fully in regard to the cause, I think.

“Q. You may state what caused that, if you know of your own knowledge. A. I could give you here a statement as my positive opinion.

“Q. Well, I don't want any opinion, I want to know what you know. A. Well, I had better not say, I might not know, but I do know that it was caused by this dam in the river, I am positive; I know that it was.”

Other witnesses testified to the same effect. It is this line of testimony which counsel for respondent, notwithstanding the admitted facts that the water which overflowed just above the Perazzo ditch went back into the main stream below the Merritt dam and above the Spragg, Alcorn & Bewley dam, and that there was no overflow between the Merritt and the Spragg, Alcorn & Bewley dams, think should be sufficient to establish their case by a preponderance of the evidence.

1. Counsel for plaintiff call our attention to the case of Hand v. Catawba Power Co., 90 S. C. 267, 73 S. E. 187, in support of their contention that testimony of the ranchers in the neighborhood of the McLeod ranch should outweigh the testimony of the experts called by defendants. While it is undoubtedly the general rule that witnesses must testify as to matters of fact, and leave the conclusion to be drawn by the jury, there are certain exceptions to this rule; and, when it is impossible for the witness to detail all of the pertinent facts

[40 Nev. 447, Page 473]

in such a manner as to enable the jury to form a conclusion, the witness may give his opinion. The facts in that case no doubt justified the ruling of the court.

“It is not proper to allow one who is not an expert to express any opinion in any case upon a question with relation to which all the facts may be placed before the jury; and to receive as evidence the opinion of a lay witness upon the precise issue submitted for trial in such case would permit the witness to usurp the province of the court or jury trying the cause.” (Amer. T. & T. Co. v. Green, 164 Ind. 349, 73 N. E. 707.)

See, also, Loshbaugh v. Birdsell, 90 Ind. 466; Com. v. Sturtivant, 117 Mass. 122, 19 Am. Rep. 401; Balto. etc. Road v. Leonhardt, 66 Md. 70, 5 Atl. 346; Mann v. State, 23 Fla. 610, 3 South. 207; Stephenson v. State, 110 Ind. 358, 11 N. E. 360, 59 Am. Rep. 216; Shaw v. Jones, 133 Ga. 446, 66 S. E. 240.

2. The question, then, is: Were the facts and circumstances which entered into the forming of an opinion by the witnesses themselves as to what caused the overflows complained of capable of being detailed to the jury? If they were, the opinion of the various non-expert witnesses should have been excluded; if they were not, their admission and testimony by the court was not error. It appears from the evidence in this case, which took about five weeks to hear, that various witnesses detailed what transpired along the river as it flows through the property owned by the parties, from a very early day in the history of the valley. The various dams, ditches, cuts, overflows, etc., were minutely detailed to the jury. Besides, the jury were taken to, and personally viewed, the premises in question. Under the condition of the record, it appears to us that the objections to the opinions of the non-expert witnesses should have been sustained.

In this connection, there is another fact worthy of consideration, and that is the relationship of the Merritt dam to the Spragg, Alcorn & Bewley dam, so far as the latter affected the deposit of silt above the Merritt

[40 Nev. 447, Page 474]

dam. It must be borne in mind that the Merritt dam is nearly a mile further up the river from the Spragg, Alcorn & Bewley dam, and that it was put in for the purpose of diverting a portion of the water of the river into an irrigation ditch. The Merritt dam was partly washed out in 1883, but was rebuilt, and, so far as appears, remained in the river and was eventually covered with sand; the last seen of it, according to the testimony of plaintiff, being in 1904, while Waldo, one of his witnesses, testified that he saw it in 1906.

J. C. Mills, a witness for plaintiff, and an owner in the Merritt ditch since 1886, testified that when he first saw the ditch the bed of the river was from a foot to a foot and a half below the level of the ditch, and that it was for this reason the dam was put in; that in 1886 the dam was on a level with the floor of the gates; that about that time the dam was practically covered with sand and has remained covered ever since; that the sand kept increasing after 1886 until in 1900, when he assisted in putting in another headgate in the Merritt ditch; that in 1900 the bed of the river was three feet and one inch higher than it was in 1886; that in the fall of 1905 the river was filled with sand at the Merritt dam level across and only eighteen inches or less from the top of the banks; and that at the time of the trial there were three feet of sand on top of the rocks of the Merritt dam.

G. T. Feiganspan, a witness for the plaintiff, and an owner in the Merritt ditch, and its manager since 1880, testified that he first saw the Spragg, Alcorn & Bewley dam in 1890; that five or six years after 1883, he noticed that the Merritt dam was no longer in sight; that in his opinion the Spragg dam backed sand over the Merritt dam in 1885. Asked why he would say the Spragg dam covered the Merritt dam with sand in 1885, when he did not see the former dam until five years later, he replied, “That is the only thing I can lay it to.”

Plaintiff testified that the Merritt dam raised the water two feet.

[40 Nev. 447, Page 475]

Now, is it not conclusive that the Merritt dam, under respondent's theory of the case contributed to the filling of the river? The rebuilding of the Merritt dam in 1883 is a conclusive argument to the effect that at that time at least the backwater from the Spragg, Alcorn & Bewley dam did not reach up to that point, for, if it had, the effect of the backwater would have accomplished the very purpose for which the dam was rebuilt. Furthermore, if the Merritt dam was two feet high, and the fall of the river being 1 foot to the 1,000, and if the Spragg, Alcorn & Bewley was 4,000 feet further down the river from the Merritt dam, was it not a physical impossibility for the backwater to have reached the top of the Merritt dam unless the Spragg, Alcorn & Bewley dam was six feet high? Upon the same theory, if the Merritt dam was only one foot high, and the Spragg, Alcorn & Bewley dam 4,000 feet further downstream, it must have been five feet high to have caused the backwater from it to reach the top of the Merritt dam; and if the Merritt dam was six inches high, and the Spragg, Alcorn & Bewley dam 4,000 feet further down stream, it must have been four and a half feet high before the backwater from it could have become as high as the Merritt dam. If this is true, how could it be possible for the backwater from the Spragg, Alcorn & Bewley dam to affect the stream above the Merritt dam? In fact, counsel for respondent say in their brief:

“It is true that McCray, Thurtell, and Hammond testified a dam could not cause the deposit of sand above the point where the dam affected the current of the river. That is the statement of a proposition known to every one, which statement is a mere hypocrisy intended and calculated to mislead the jury and the court. The issue was as to how far the dam did affect the current of the river.”

Counsel for respondent take the position that the contention of appellants is correct to the extent that backwater will not be affected much further up the stream than at the point where a horizontal line drawn

[40 Nev. 447, Page 476]

from the crest of the water as it passes over a dam intersects the bed of the river, but contend that a different rule applies so far as the influence upon the deposit of sand is concerned. If we concede this contention to be correct as to the influence on the deposit of sand, we are yet unable to see how the backwater from a dam can possibly affect the deposit of sand above a dam which is further up the stream, when the backwater from the lower dam does not reach the top of the upper dam. If we take the correct view of the situation, it necessarily follows that the opinions of the non-expert witnesses called by plaintiff, even if admissible, are of little or no value whatever. It is said:

“Courts are not so deaf to the voice of nature, or so blind to the laws of physics, that every utterance of a witness in derogation of those laws will be treated as testimony of probative value simply because of its utterance.” (1 Moore on Facts, sec. 160.)

Mr. Justice Marshall, in speaking for the Supreme Court of Wisconsin, in Groth v. Thomann, 110 Wis. at page 181, used the following language:

“When physical situations or matters of common knowledge point so certainly to the truth as to leave no room for a contrary determination, based on reason and common sense, such physical situation and reasonable probabilities are not affected by sworn testimony which, in mere words, conflicts therewith. The fact established by the situation itself and matters of common knowledge, so clearly that no one can reasonably dispute it notwithstanding evidence to the contrary, must stand uncontroverted and uncontrovertible, condemning as false such contrary evidence, either upon the ground of mistake or something worse.”

Just here it may not be out of place to say that, while Prof. Merriman, in his Treatise on Hydraulics (9th Ed.), at page 353, takes the position that while many attempts have been made to determine the precise distance that a dam will cause backwater, none can be said to have been successful. From the formulas which he gives we

[40 Nev. 447, Page 477]

understand him to mean that because of the varying dimensions, fall, etc., of a stream, it is difficult to tell the exact point at which the backwater from a dam will affect the flow of a stream. We think there can be no doubt about that proposition; but the matter of a few hundred feet, more or less, makes no difference in this case. The question of approximating the distance with some considerable degree of exactness arises in cases where a dam causing backwater may affect a mill wheel located on the stream above the dam. It is clear, however, from Mr. Merriman's work, that the point of backwater never varies greatly from the point where a horizontal line drawn from the crest of the dam will intersect the surface of the stream. But regardless of Prof. Merriman's view, it appears from the statement in the brief of counsel for respondent, and from the evidence of his expert, Mr. Hammond, that there is no substantial difference of opinion between the parties to the suit as to the distance at which the flow of water will be affected by a dam.

Taking respondent's view of the case, however, it is impossible to comprehend that the Merritt dam was not having the same effect in causing deposits of sand in the bed of the river above that dam that the Spragg dam was causing above it. Under counsel for respondent's theory, the Merritt dam must have been causing a deposit of sand in the bed of the river above that dam for about fourteen years before the Spragg dam could possibly have had any effect upon the river above the Merritt ditch. According to respondent's theory, a deposit of sand is caused in the stream at the upper point of backwater, thus raising the bed of the river—in effect causing another damming at that point—which in turn checks the current still further up the stream, and this process continues indefinitely up the stream. If this theory is correct, a dam in a river carrying silt, when it once starts a deposit of silt, must operate as a continuing cause of deposit up the stream, except as such deposit may be overcome by scouring during certain

[40 Nev. 447, Page 478]

stages of the river volume. Hence it follows that it is impossible, under respondent's theory, to say that the Merritt dam was not a contributing cause to respondent's injury. A fact that should be borne in mind in considering respondent's theory is that the height of a dam is immaterial so long as it is high enough to cause backwater.

Assuming the theory of respondent to be correct, and assuming that the Spragg dam did cause the river between it and the Merritt dam to fill with sand so that eventually the sand reached to the top of the Merritt dam, it then is a physical fact that the two dams would thereafter cooperate in causing a deposit of sand in the river above the Merritt dam.

It is to be regretted that the laws of hydraulics controlling the deposit of material carried in suspension in flowing streams have not been demonstrated so far as to establish as a known law whether backwater from a dam will or will not cause a deposit above the point of backwater.

3. This is the first case where a dam used to divert water for purposes of irrigation has been charged with responsibility for an overflow alleged to have been occasioned by filling the bed of the stream with a deposit of sand far above the point reached by backwater caused by the dam. If scientists had determined these laws so that they could be applied to the facts of this case, courts would be bound to apply them. In so far as experts upon hydraulics have expressed their opinion, both in this case and in the Hand v. Catawba Power Co., case, cited, supra, such opinon has been that the dam would not affect the deposit of sand and silt much above the point of backwater. Where, because they are unknown, it is impossible to apply fixed natural laws to a solution of the problem, courts must resort to the best means available of determining, if possible, the truth of the case. Hence expert testimony may be considered, as well as facts established by the testimony of other witnesses; but, as before pointed out, non-expert witnesses may not be

[40 Nev. 447, Page 479]

permitted to invade the province of the jury and testify directly to the ultimate fact in the case.

In considering the question of what caused the overflow for which recovery is sought, and assuming the correctness of respondent's theory, there are, in our opinion, other elements to be reckoned with besides the Spragg, Alcorn & Bewley dam. We believe no one will deny that the rapidity with which water flows has a good deal to do with the percentage of deposit of the silt which is carried in the water. If sufficient sand is deposited into running water to raise the percentage of sand from 5 per cent to 50 per cent, it can readily be seen that the speed of the flow will be greatly decreased. The plaintiff made several cuts through his ranch for the purpose of straightening the river. The method of making a majority of these cuts was to dig a ditch about two or three feet wide and turn the water of the river into the ditch that it might, in the ordinary process of erosion, wash out a channel wide enough to carry all the waters of the stream. One of the cuts was made by taking off the surface to a depth of two feet and thirty feet wide. The contents of all of the cuts, which washed down the river, were over 30,000 cubic yards. The last-named cut was made in April, 1907, and the water turned in before the overflow of that year, though it is not known to exactly what depth the cut was washed out at the time of the overflow.The cutting away of the soil by the water flowing through these new cuts necessarily had the effect of greatly increasing the sand which was carried in the water, and, consequently, in decreasing the rapidity of the flow of the stream, naturally increasing the quantity of the deposit of silt in the river below the cut. Believing, as we do, that the cuts made by the plaintiff contributed toward the filling up of the river, we are unable to see why defendant should be held liable for the total damage done to plaintiff's ranch caused by the overflows, if to any extent whatever.

It is contended by counsel for respondent that the sand washed into the river from the several cuts made by the

[40 Nev. 447, Page 480]

respondent cannot be regarded as a contributing cause to the filling of the bed of the river, for the reason that an equal or greater amount of sand and silt was deposited in the old channel after the new channel was established by the cuts. In the absence of other proof, which does not appear in this case, it would not follow as a necessary conclusion of fact that these cuts, by reason of the filling up of the old channel due to a decrease in the rapidity of the current therein, had not caused a greater deposit in the bed of the river below the cuts than would have been the case if the cuts had not been made. That would depend largely upon the character of sand and silt deposited in the old channel. A fine silt, which the normal flow of the river would carry off, leaving little or no deposit in its bed, carried from time to time into the old channel, would there be deposited owing to the sluggish current being unable to hold it in suspension, and would eventually fill the old channel. The mere fact that an equal or greater cubic content of sand and silt was deposited in the abandoned channel, without other proof, would be of little weight, in view of the fact that known laws of hydraulics determine that a stream's carrying capacity of sand, silt, or other material has a fixed ratio to the velocity of the current.

In addition to the silt from the cuts mentioned, there must have been other causes contributing to the filling of the river. It is a well-known law of hydraulics that the more the volume of water in a stream is decreased the slower it flows, and consequently the greater is the increase in sedimentary deposit. There were on, or just above, the ranch of plaintiff, during at least a portion of the time when it is claimed the backwater from the Spragg, Alcorn & Bewley dam caused the deposit of silt to which the overflows are attributed, at least five ditches which took water from the river, thereby decreasing the flow of the water in the river, and correspondingly increasing the deposit of silt. The last one of the ditches to be constructed was the Perazzo ditch, in 1903, upon plaintiff's land, and with his consent. As we view the case, each

[40 Nev. 447, Page 481]

of the ditches alluded to contributed its share to the filling up of the river.

4. It is the contention of appellants that, under such circumstances, they are liable only to the extent of which they contributed to the injury to plaintiff's ranch. We think their contention as to the law is correct. In the case of Blaisdell v. Stephens, 14 Nev. on page 21, 33 Am. Rep. 523, Mr. Justice Hawley, in delivering the opinion of the court, the case being similar to the one at bar, said:

“The general principle is well settled that where two or more parties act, each for himself, in producing a result injurious to plaintiff, they cannot be held jointly liable for the acts of each other.”

This view is sustained by ample authority: Gould on Waters, sec. 222; Miller v. Highland D. Co., 87 Cal. 430, 25 Pac. 550, 22 Am. St. Rep. 254; Gallagher v. Kemmerer, 144 Pa. 509, 22 Atl. 970, 27 Am. St. Rep. 673; Chipman v. Palmer, 77 N. Y. 51, 33 Am. Rep. 566; Watson v. Colusa, 31 Mont. 513, 79 Pac. 15; Woodland v. Portneuf, 26 Idaho, 289, 146 Pac. 1106; South Bend M. Co. v. Lyshart, 12 Ind. App. 185, 39 N. E. 908; Harley v. Merrill B. Co., 83 Iowa, 73, 48 N. W. 1000; Swain v. Tenn. Copper Co., 111 Tenn. 430; 78 S. W. 93; Sloggy v. Dilworth, 38 Minn. 179, 36 N. W. 451, 8 Am. Rep. 656; Draper v. Brown, 115 Wis. 361, 91 N. W. 1001.

5. Error is assigned to the overruling of an objection by the defendants to the following questions propounded to the plaintiff:

“Q. Who, if any one, warned you of the building of the dam (referring to the S., A. & B. dam), and the effects of the raising of the dam? A. One in particular was Mr. N. H. A. Mason. He is dead now. He was an owner in the Spragg, Bewley, Alcorn.

“Q. What did he say about it? A. He was speaking about that dam. He had men, or his foreman, and so on, had helped build the dam there for a number of times, and Mr. Mason says to me, ‘if they keep building that dam up, some day it is going to ruin your place,' and it

[40 Nev. 447, Page 482]

was about the time, or very near the time, that I gave Mr. Mason a deed of one-half of my water right. I think it was in 1889, somewhere along there.”

At most, this testimony did not purport to be more than the giving of evidence of a statement made by one of what might or would happen at some time in the future, as distinguished from a statement as to an existing fact. It was mere prophecy. We are unable to call to mind any rule, or conceive of any reason, which would justify the court in receiving such testimony. (Burt v. Wigglesworth, 117 Mass. 306.) It is contended on the part of respondent that this testimony is proper because Mason owned the Miller & Lux ranch at the time it is alleged he made the statement. Conceding that the theory advanced as to the law is correct, we find no evidence in the record to sustain it.

6. On the trial defendant objected to certain questions going to establish the extent of plaintiff's damage. The witness William Rallens was asked:

“Q. In examining the ranch, did you form any opinion as to the extent of the damage caused to the land by the overflow? A. I did.

“Q. What in your judgment, then, from your examination, do you consider the land overflowed was damaged? A. I consider two-thirds of its value.”

We think the objection should have been sustained. If the witness was qualified, he might have testified as to the value of the land before and after the overflow. Such would have been the proper method of arriving at the damage. (Howell v. Medler, 41 Mich. 641, 2 N. W. 911; Upcher v. Overlender, 50 Kan. 315, 31 Pac. 1080; International R. Co. v. Fickey, 125 S. W. 327; Louisville R. Co. v. Sparks, 12 Ind. App. 410, 40 N. E. 546; Van Deusen v. Young, 29 N. Y. 20; Tenn. Co. v. McMillan, 161 Ala. 130, 49 South. 880; Central Ry Co. v. Barnett, 151 Ala. 407, 44 South. 392.)

7, 8. Prior to the trial of the case, the deposition of plaintiff was taken, on the motion of defendants. Upon the trial defendants objected to certain questions asked

[40 Nev. 447, Page 483]

the plaintiff on cross-examination by his attorneys at the taking of the deposition. One of the questions was:

“Q. Take for five years before the floods, Mr. McLeod, how much, on an average, did you clear off of this entire ranch?”

There were several just such questions to which objections were made and overruled. It is the contention of defendants that, notwithstanding the fact that the deposition was taken at their instance, plaintiff having offered the deposition in evidence, he made it his evidence, and that, if their objections are meritorious under the accepted rules of evidence, they ought to have been sustained. Section 3505, Cutting's Compiled Laws, provides:

“When a deposition has once been taken, it may be read in any stage of the same action or proceeding by either party, and shall then be deemed the evidence of the party reading it.”

In section 3504, Cutting's Compiled Laws, it is provided: “* * * And thereupon such deposition may be used by either party upon the trial or other proceeding against any party giving or receiving the notice, subject to all legal exceptions.”

It would appear that the statute has pretty clearly declared the rights of the respective parties in such matters, the statute itself providing that the evidence shall be subject to all legal exceptions. Section 3504 also provides:

“* * * But if the parties attend at the examination, no objections to the form of the interrogatory shall be made at the trial, unless the same was stated at the time of the examination.”

This seems to leave no room for doubt as to the meaning of the exception quoted above. The logic of the situation is that the court could rule upon the legal sufficiency of the matter involved upon the trial, while an objection to the form of the question should be pointed out at the time of the taking of the deposition, that it may be corrected at that time if the objection is deemed serious by the opposing party. It was said in Hatch v. Brown, 63 Me. 410:

[40 Nev. 447, Page 484]

“When a party uses a deposition taken by his opponent, but not offered in evidence by him, he makes it his own, and his opponent has the same right of objection to the interrogatories and answers which he would have had if the deposition had been taken by the party offering it; and he is not precluded by the fact that the interrogatories objected to were propounded by himself when the deposition was taken.”

See, also, In Re Smith, 34 Minn. 436, 26 N. W. 234; 6 Ency. Pl. & Pr. p. 585.)

We can conceive of no theory upon which such testimony would be proper as a basis for the fixing by the jury of plaintiff's damages. The objections should have been sustained.

Counsel for appellant, and counsel appearing amicus curiae, have urged very forcibly that this court ought to hold that, in the absence of negligence, there could be no liability in damages in this case, even assuming that a dam could cause a deposit of sand in the bed of a river above the highest point of backwater, for the reason that dams in river channels are essential to irrigation in this state; that the law recognizes irrigation not only as lawful but as specially favored in the law; and that damages, caused otherwise than by direct overflow, incapable of being foreseen or guarded against, is such a consequential damage that no liability in the law exists therefor. Many authorities, applicable to public or quasi-public utilities, are cited in support of this contention. We have no hesitancy in saying that this rule ought to be held applicable in cases of irrigation dams, but we are not prepared to say that it should be applied to every sort of irrigation dam that might be constructed. In a stream carrying large quantities of sand and silt during portions of the year, it might be regarded as negligence to maintain a solid dam, while the maintenance of a dam with movable gates, by which the flow of the river and the deposit of silt could be regulated, could not be held to be negligence, and no liability for damage could be

[40 Nev. 447, Page 485]

chargeable thereto, otherwise than an overflow due directly to backwater.

While there are various other errors assigned, we deem it unnecessary to consider them.

It is ordered that the order and judgment appealed from be reversed, and that the case be remanded.

Norcross, C. J., concurring:

I concur in the judgment and in the opinion of Mr. Justice Coleman. The case is of such unusual character that I venture to add some additional supplementary observations. Whether defendants were liable to respond in damages for the injury done to plaintiff's property caused by the Walker River overflowing its banks during the years 1904 to 1907, inclusive, has presented for determination intricate questions, both of law and fact, which the court, notwithstanding the aid of elaborate briefs of respective counsel, has found no little difficulty in determining. If the contention of counsel for appellants—that the injury, even if occasioned in the way claimed by respondent, was remote and consequential and for which no remedy in law was afforded—could have been sustained, the necessity for considering other questions would have been eliminated.

It is conceded in this case that the overflows which occasioned the damage were not caused by backwater from the dam. If the dam complained of had raised the water in the river to the top of the banks at the dam, the water level would be 11.42 feet below the bank at the highest point of overflow. The banks of the river at other points of overflow varied from about 4 1/2 to 8 feet higher than the banks of the river at appellants' dam. Respondent's theory rests upon the contention that the current of the river will be affected above the level of backwater by reason of the deposit of sand and silt due to a checking of the velocity of the current within that portion of the river affected by backwater. It is here we have the conflicting views as to whether this can or cannot

[40 Nev. 447, Page 486]

happen in accordance with natural laws. It is conceded that sand and silt carried in suspension in a stream will not be deposited in the channel unless the velocity of the stream is checked to such an extent that it has not the necessary carrying power to longer hold it in suspension. It is a known law of hydraulics that all portions of a cross-section of a stream have not the same velocity, and this variation in velocity causes some deposit of sand and silt upon the bed of the stream. Plaintiff's whole case rests upon an application of the known law of hydraulics that a reduction in the velocity of a stream carrying sand or silt in suspension will cause such sand or silt to be deposited on the bed of the channel.

Whether this law of hydraulics is applicable to the facts of this case—that is, whether appellants' dam can have the effect of decreasing the velocity above the level of backwater—is the question upon which plaintiff's counsel and witnesses differ in opinion from the opinions of the expert witnesses upon hydraulics. The point I wish to emphasize here, however, is simply that an established law of hydraulics is invoked to prove that the appellants' dam is the sole cause of plaintiff's injury, when from the undisputed facts in the case it is impossible that it could have been the sole cause of the filling of the river channel by a deposit of sand and silt, for the reason that other agencies under known laws of hydraulics contributed to a greater or less degree in checking the velocity of the current. The volume of water naturally flowing in the river was reduced by the numerous ditches diverting water from the river upon or above the ranch of plaintiff and above defendants' dam. Necessarily these ditches reduced the volume of water in the river below, and hence necessarily reduced the velocity of the current. It has been contended, for example, that appellants' dam was the sole cause of the filling of the river above that dam, and below the Merritt dam, and that the Merritt dam could not have had any effect in filling the river below the latter dam. The Spragg,

[40 Nev. 447, Page 487]

Alcorn & Bewley dam caused a deposit of sand and silt between the two dams, because it decreased the grade of the river to a level for the distance it caused backwater; the reduction in grade causing a reduction in velocity. The Merritt ditch caused a reduction in the volume of water flowing below the Merritt dam, and this reduction in volume caused a corresponding reduction in the velocity of the current. It certainly is immaterial whether velocity is reduced by a cause which affects the grade or a cause which affects the volume—both contribute to the deposit of sand and silt.

An application of these established laws of nature to the facts of this case illustrate the reason why the opinion of non-expert witnesses upon the ultimate fact in the case ought not to be permitted. Courts are bound to apply known natural laws so far as they are applicable. A lack of knowledge of known natural laws may cause a witness to form an entirely erroneous opinion as to the cause of a certain effect. The witnesses in this case who testified that the Spragg, Alcorn & Bewley dam was the cause of the overflow were undoubtedly perfectly convinced of the correctness of their opinion and honest in its expression, but the physical facts and known laws of hydraulics are conclusive that those opinions were in part, at least, erroneous.

The long delay in the determination of this case is regretted extremely. Changes in the personnel of the court making necessary a reargument and reassignment of the case, the voluminous record, number, newness, and importance of the questions presented, and an endeavor to harmonize conflicting views, account for a delay in the decision which has been seemingly unreasonable.

McCarran, J., dissenting:

I dissent.

This case was originally assigned to the writer for the preparation of the opinion of the court. In view of the position taken by the majority of the court, I am herewith

[40 Nev. 447, Page 488]

setting forth only so much of my opinion originally prepared as I deem applicable to the matters touched upon in the prevailing opinion.

The prevailing opinion in this case rests primarily upon the contention of appellants that it was a physical impossibility for the Spragg, Alcorn & Bewley dam to cause the overflow in question. The principal ground asserted in support of this declaration is the fact that a horizontal line drawn from the crest of the dam would intersect the river bed at a point far below the place where the flood waters broke from the river channel and flowed over the premises of McLeod. However true it may be that the current of a stream will not be affected by an obstruction above a point where a horizontal line passing over the crest of the obstruction would strike the bed of the stream, this rule cannot be strictly applied, and, in fact, will not apply at all, where the stream, as in the case at bar, is one which during certain seasons of the year carries great quantities of silt and sand in its current.

Evidence was introduced in this case of levels taken from the dam up the Walker River, for the purpose of showing that the waters of the Walker River were not affected or raised as far up the river as the point of overflow. Testimony of engineers versed in the subject of hydraulics was introduced, tending to establish that the dam in question could not affect the river above the point where a horizontal line from the crest of the dam would intersect the bottom of the river. Testimony was introduced to show that this point of intersection was far below the premises of respondent affected by the overflow. On the other hand, testimony was introduced coming from witnesses who had spent many years in and about the vicinity of the property in question, and who had for many years past observed the action of the Walker River, and these witnesses, basing their statement on their observation and experience, testified not only that the bed of the river was filled with silt and sand an debris as a direct result of the dam in question, but that the overflowing of respondent's premises was

[40 Nev. 447, Page 489]

caused by the dam. In this respect, we find a direct conflict between the testimony of the experts offered on behalf of appellants based on scientific investigation and that of non-experts based on actual observation and experience.

It is manifest that the jury, having heard both sides of the testimony, were convinced by the latter. Indeed, we believe, as has been well asserted by other courts, that, owing to the impossibility of arriving at precisely accurate results by the use of instruments, running over many miles in extent, involving, as in this case, a great number of stations and the adjustment, taking and registering of levels thereat, and the many different circumstances, explainable and unexplainable, which effect the action of water when obstructed and ponded in running streams, actual tests by observation and experience afforded the most satisfactory testimony upon which to rely in determining the results from such obstructions. (Turner v. Hart, 71 Mich. 128, 38 N. W. 890, 15 Am. St. Rep. 243; Brown v. Bush, 45 Pa. 61; Decorah W. M. Co. v. Greer et al., 58 Iowa, 86, 12 N. W. 128.)

In the case of Turner v. Hart, supra, the Supreme Court of Michigan, in considering a similar subject, said:

“Every author treating upon the subject of hydrodynamics acknowledges and points out the difference between theoretical and actual tests, and, in advancing practical rules, modifies the theoretical to correspond as nearly as possible to actual observation and experience. We think the observation and experience of the witnesses introduced by complainants is controlling ...

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