
    290 F. 880
    EIKLAND et al. v. CASEY et al.
    No. 3974.
    Circuit Court of Appeals, Ninth Circuit.
    July 16, 1923.
    Rehearing Denied Aug. 20, 1923.
    
      J. H. Cobb, of Santa Barbara, Cal., for plaintiffs in error.
    H. L. Faulkner, of Juneau, Alaska (Robert W. Jennings, of San Francisco, Cal., of counsel), for defendants in error.
    Before GILBERT, HUNT, and RUDKIN, Circuit Judges.
   HUNT, Circuit Judge

(after stating the facts as above).

There was more testimony at the second trial than there was at the first upon the extent of the rainfall which caused the rise of the creek. Nevertheless, considering all of the testimony, we are of the opinion that it fell far short of proving that the flooding was so far due to natural causes, directly and exclusively without human intervention, that it could not have been prevented by any amount of foresight and care reasonably to have been expected of the defendants. Eikland v. Casey (C.C.A.) 266 F. 821, 12 A.L.R. 179. The court, therefore, should have decided as a matter of law that the flooding was not due to an act of God, and the case should not have been complicated by that issue.

But the elimination of that question does not compel the conclusion, contended for by plaintiffs, that defendants were liable for the damages caused by the flooding, for there remained the question whether the flooding which caused the damage was attributable to the negligence of the defendants. Nelson v. Casey (C.C.A.) 279 F. 100. Determination of the negligence issue necessarily involved consideration of the evidence bearing upon the construction of the bulkhead and the strain put upon the cribbing built by the defendants. Should the defendants have guarded against the unusual condition which existed as a result of the heavy rainstorm ? Or, put in another way, ought the defendants reasonably to have anticipated that harmful consequences would flow from their acts in the construction of the cribbing or the flume, or the deflection of the course of the stream? The evidence bearing upon these matters was properly for the jury. There was therefore no error in refusing plaintiffs’ request for an instruction to find a verdict in their favor.

Nor did the court err in refusing to charge that, if it were found that if defendants had not built the bulkhead and cribbed the channel, and the stream had been left in its natural state, the high water would not have damaged plaintiffs’ property, plaintiffs should recover. Defendants had a right to deflect the stream, and to construct a flume or cribbing, provided, always, they were not negligent in doing any of these acts. As defendants’ evidence tended to show that the channel was not changed by them, and that there was no lessening of the capacity thereof, the question of negligence stood for answer by the jury.

Other requests by plaintiffs for instructions, which were based upon an assumed doctrine that liability necessarily followed the obstruction of the channel by logs damming the current thereof, and the washing away of the bank, were properly refused. The court was right in refusing to hold, as a matter of law, that the obstruction of the channel and damming of the creek constituted negligence.

The doctrine sustained by the great weight of American authority is that one attempting to dam or store water, or to divert a stream, while not an insurer, must use care commensurate with his undertaking. If he constructs' bulkheads or dams, his duty is to make them of sufficient strength to resist the waters which he ought reásonably to anticipate are likely to come down the creek, and he must use reasonable care in maintaining such works of sufficient strength to resist such water. Nelson v. Casey, supra.

Liability for damage is not to be assumed without proof of some fault or negligence on the part of the defendants. Losee v. Buchanan, 51 N.Y. 476, 10 Am.Rep. 623; Farnum on Waters and Water Rights, § 982; Louisville R. Co. v. Conn, 166 Ky. 327, 179 S.W. 195; Lyon v. Chicago R. Co., 45 Mont. 33, 121 P. 886; Price v. Oregon R. Co., 47 Or. 350, 83 P. 843; Dahlgren v. Chicago R. Co., 85 Wash. 395, 148 P. 567; Central Trust Co. v. Wabash R. Co. (C.C.) 57 F. 441.

And here we say that we have considered plaintiffs’ argument that the law of the case, as decided in Eikland v. Casey, supra, was that no question of negligence is involved, unless, as plaintiffs put it, “the diversion itself, in such way that the stream was not as safe as before, is negligence.” But what in fact was decided upon the. former writ was that the instructions “upon the question of an ordinary flood” were not “sufficient under the testimony ' of the case,” and that a new trial should be had. After remand the issues raised by the pleadings were amplified by clearly presenting an issue of negligence, especially in the construction of the cribbing, and upon the second trial both sides introduced testimony other than that elicited at the first hearing, and the court gave somewhat different instructions upon what would constitute an extraordinary flood. Under such circumstances, our judgment ought not to be controlled by general expressions in the former opinion, where it was assumed that certain facts were established, upon the very point now presented for decision.

Plaintiffs’ exceptions to certain instructions given were based upon the submission of the question whether the damage complained of was caused solely by an act of God, in no way contributed to by the act of the defendants in the construction of the flume. As already shown, it was error to inject the question of an act of God into the instructions; but in no way could such error have prejudiced the plaintiffs. Surely plaintiffs cannot complain if the verdict was reached upon the ground that the damages were caused by inevitable accident, as the result of vis major or act of God, against which one cannot reasonably be expected to guard, provided the correct rule applicable was stated, as it was in substance: That if it were found that the construction of the bulkhead or flume contributed to or caused the damage complained of, and such result could not have been reasonably anticipated or foreseen, verdict should be for the defendants; but that, if the damage could have been reasonably anticipated as resulting from the construction of the bulkhead or flume, defendants would be liable. The jury were also charged to find whether the flood was of such an extraordinary nature that its coming was not foreshadowed by the usual course of nature, and its magnitude could not have been anticipated or provided against by the exercise of ordinary foresight.

The facts having been found against plaintiffs, and there being no prejudicial error of law, the judgment will be sustained.

Affirmed.  