
    [No. 890.]
    S. M. and S. E. BURBANK, Respondents v. WEST WALKER RIVER DITCH COMPANY, Appellant.
    Injuries Caused by the Breaking op a Ditch — Verdict Sustained by the Evidence. — The facts of tlie case reviewed at length: Held, that the evidence supported a verdict in favor of plaintiffs.
    
      Idem. — Held, that the defendant was bound to provide against such floods as had occurred within its knowledge.
    Idem — Contributory Negligence. — The plaintiffs were stockholders and officers of the coloration defendant; as such they frequently urged upon the trustees the necessity of fluming the west fork of Desert creek to prevent the injury which occurred; when overruled, they offered to do the work themselves and were threatened with personal violence: Held, that they were not guilty of contributory negligence.
    Pleadings — Prescriptive Bight. — Where the damages were not claimed on account of the mere existence of the ditch, but were claimed on account of the careless management of the ditch and neglect of defendant to provide proper means of discharging the waters of the west fork of Desert creek into their natural channel in ease of flood: Held, that neither the pleadings nor the evidence entitled the defendant to raise the question of prescription.
    Stockholders can bring Suit por Damages Against Corporation.— Where damages are claimed on account of mismanagement by the corporation against which the plaintiffs as officers and stockholders constantly protested: Held, that plaintiffs as stockholders could maintain the action.
    Appeal from the District Court of tbe Eighth Judicial District, Esmeralda County.
    
      The facts are stated in the opinion.
    
      Robert M. Clarice and M. A. Murphy, for Appellant.
    I. The proofs totally fail to support the averments of the complaint. There is no pretense of any carelessness or negligence in using the ditch; nor that the waters brought into the ditch by the defendant caused any break in the banks of the ditch, or did the plaintiffs any damage whatever, nor that the ditch was not in good repair. On the contrary, it is shown that the ditch was ample for the use and purposes intended, and in place of carrying water upon the plaintiff’s land, carried it away from them. The damage which the plaintiffs sustained was the direct and sole act of God, and for which the law holds no man responsible. (Wharton on Negligence, secs. 114, 115, 557, 558; 30 N. T. 568, 639; 35 Cal. 416.) As no negligence is shown or pretended, except such as results from the mere existence of the property, there is absolutely nothing to support the verdict and judgment. (Shearman & Bedfield on Negligence, sec. 2 and note, 6 and note; Wharton, secs. 557, 558; 34 Cal. 75.)
    II. The defendants commenced their ditch before plaintiffs had their land; they have maintained and used it in the same place and manner, and with plaintiff’s knowledge for more than fourteen years, and if its mere existence worked any injury to plaintiffs or their land, then such injury is prescribed against by lapse of time under the statute of limitations. (Angelí on Water Bights, secs. 205, 206, 207, 208.
    III. The court erred in charging the jury that the defendant must so use its ditch as not to interfere with plaintiffs’ rights. This instruction ignored the defendant’s rights of prescription. (7 Cal. 339; 10 Id. 541; 34 Id. 75.)
    
      Ellis & King and D. J. Lewis, for Bespondent.
    1. The verdict is for plaintiff, upon testimony competent and amply sufficient to support the verdict, and if the testimony is conflicting, the verdict must stand. (25 Cal. 404; 16 Id. 160; 21 Id. 414; Treadway v. Wilder, 9 Nev. 67.) It was the duty of the defendant to so manage and maintain its ditch as that no injury should befall the plaintiffs in consequence of the neglect of the dbféndant. (Richardson v. Kier, 34 Cal. 74.) If it appears that an injury, has happened in any way, through the intervention of man, it cannot be held to have been the act of God. (Polack v. Pioche, 35 Cal. 423; McArthur v. Sears, 21 Wend. 190; Fish v. Chapman, 2 Geo. 349; Merritt v. Earle, 29 N. T. 115; 25 Cal. 403.) The direct' occasion of this damage was the failure to flume the channel. This was negligence upon the part of the defendant. (25 Cal. 403; 34 Id. 75.) Even if the instruction states the law too broadly the case should not be sent back for another trial, unless the defendant has been deprived of some right which ought to have, or might have, legally changed the result of the trial already had. The error, if any, was 'harmless. (Robinson v. Imp. Co., 5 Nev. 44; Ca-hill y. Eirschman, 6 Id. 59; Capíes v. C. P. B. B., 6 Id. 265; Brown v. Lillie, 6 Id. 244; Sharon v. Minnoclc, 6 Id. 377; Blackie v. Cooney, 8 Id. 41; Menúes v. Kennedy, 9 Id. 52; State v. Donovan, 10 Id. 36; State v. Glovery, 10 Id. 24; Gaudette v. Travis, 11 Id. 49.) There is no' question of limitation or prescription in this case.
   By the Court,

Beatty, J.:

This is a suit for damages' for injuries alleged to have been caused by the negligence of the defendant, in suffering its irrigating ditch to break and flood the lands of the plaintiffs. The complaint contains the allegations usual in such cases; the answer denies that the plaintiffs were injured; denies that the defendant was negligent, and charges that the plaintiffs were, at the time of the alleged injuries, stockholders and officers of the defendant, and as such officers were managing the ditch and specially charged with the duty of keeping it in repair.'

On these issues the case was tried. Plaintiffs recovered a judgment for upwards of eighteen hundred dollars. The defendant moved for a new trial, and, the motion being overruled, it appeals from the judgment and the order denying its motion.

It is claimed by appellant that the district court erred in refusing to order a new trial, because there was no evidence that it was guilty of negligence, or that the injury to the plaintiffs was caused or in any degree augmented by reason of its ditch; and because it was clearly shown that such injury as plaintiffs sustained was due solely to the act of God and their own culpable negligence; and because it also clearly appears that their injury was less serious than it would have been if the ditch had never been dug.

We think, however, that there is not only some evidence but a preponderance of evidence in favor of the plaintiffs on all these points.

There was evidence sufficient, we think, to prove the following state of facts: Defendant’s ditch heads in the West Walker river, and extends for a distance of several miles in an easterly direction along the slope of the hills which lie to the south of that stream. It is so constructed as not only to divert water from the river, but also to intercept all the water flowing from the hills to the south of it. Instead of being connected by flumes across the ravines and watercourses by which it is intersected, it is made to dam up their channels and receive all the water flowing therein. Near its eastern or lower end it crosses two branches of Desert creek, known as the “ East fork” and “West fork.” These streams or channels head in the mountains to the south of Walker river, and, before the construction of defendant’s ditch, emptied into that stream. Ordinarily they are either dry or contain but little water, but when there are heavy snows, followed by rains in the mountains, they are converted into torrents, and either branch brings down more water than the ditch can possibly carry, so that it must inevitably overflow or break. It has frequently broken, sometimes at one point, sometimes at another. Two or three years before the trial, there were waste-gates in the ditch at the points where it receives the east and west forks, but the waste-gate at the west fork having washed out, it was not replaced when the break was repaired. Instead of putting in a sufficient waste-gate to draw off the waters of the west fork in case of freshets, the embankment was made solid, and so high and strong that it has not broken since. The consequence has been that in times of high water the ditch has broken near the crossing of the east fork, where the embankment is weaker, and discharged the flood from both branches of Desert creek upon the lands of the plaintiffs, which are situated on the east fork and below the ditch. It was proved that in their natural channel the waters of the west fork could not have reached the plaintiff’s lands, and that those of the east fork alone would have caused them no material injury. But at four different times during the years 1875 and 1876 the flood from both branches was poured upon them through a break near the crossing of the east fork, and it is not disputed that they were damaged at least to the extent found by the jury. We think it clear upon these facts that the injury resulted from the negligence of the defendant, in failing to keep a sufficient waste-gate at the crossing of the west fork. The ditch not being of sufficient capacity to carry the waters of that stream when it is high, it was the duty of the defendant to provide a means for discharging them through their natural channel. Instead of doing so, they were diverted by the ditch and turned upon the plaintiff’s land.

But it is contended that the floods of 1875 and 1876 were wholly unprecedented, and such as could not have been anticipated or provided against, and consequently that the injury to plaintiffs was solely due to the act of God.

It will not be necessary to decide whether the defendant would have been absolved if the floods had been of unprecedented violence, for the fact is otherwise. Witnesses now living in the valley testify to even greater floods having occurred within the last twenty years, and moreover, the ditch has been demonstrated to be insufficient on several occasions since its completion, notably, at the time the waste gate at the west fork was washed out. If the defendant was not bound to provide against unheard-of floods, he was at least bound to provide against such as had occurred not more than three years prior to the construction of its ditch. It had abundant warning in every way. The plaintiffs, as stockholders and officers of the company, frequently urged upon the trustees the necessity of fluming the west fork, in order to prevent tlie .very results that liave ensued, but tbey were always overruled by an adverse majority, and wben tbey offered to do tbe work themselves, tbey were threatened with personal violence if tbey attempted it. This disposes of tbe charge of contributory negligence made in tbe answer. It is true tbe plaintiffs were president and foreman respectively of tbe defendant, and one of them a trustee at tbe time a part of tbe injury occurred. But it is very clearly shown not only tbat tbey bad no power, but were expressly forbidden by a majority of tbe trustees, sustained by a majority of tbe stockholders, to provide any means for discharging tbe waters of tbe west fork into their natural channel in case of a flood.

An attempt was made at tbe trial to show tbat tbe plaintiffs bad been guilty of negligence in other respects. It was proved tbat at tbe time of tbe floods tbey refused to open tbe waste-gate at tbe east fork; but it was not shown bow tbe raising of tbat gate would bave helped them, and so far as we can see, tbe only effect of it would bave been to hasten their ruin. There was evidence also tbat tbe break occurred at tbe point where tbe plaintiffs bad a box for drawing water from the ditch for irrigating purposes, and an attempt was made to show tbat by tbe improper construction or arrangement of this box tbe embankment was weakened and caused to break. Tbe jury, however, under instructions drawn by tbe defendant, and quite as favorable as it was entitled to ask, found tbat there was no contributory negligence, and we think tbey were amply justified in concluding from tbe evidence tbat tbe ditch must inevitably bave broken at tbe east fork in spite of everything that tbe plaintiffs could bave done. In fact, it is a part of the appellant’s argument tbat no human power could bave prevented tbe ditch from breaking somewhere, and all tbe evidence shows tbat tbe embankment at tbe west fork was too strong and high to be overflowed or broken.

It was proved tbat tbe ditch below tbe east fork bad a steeper grade, and consequently a greater carrying capacity than above tbat point. From this it is argued tbat it must necessarily bave conducted away from plaintiffs’ lands more water than it brought to them, and consequently that they were less injured than they would have been if there had been no ditch. As long as the embankment of the ditch was unbroken, no doubt it did carry away more water than it brought down to the east fork, but when the water it brought from the west fork, uniting with that of the east fork, Avashed out the embankment, it is probable that very little if any' water continued to flow down the ditch to the eastward. It found a wider channel and steeper grade down the bed of the east fork.

These are all the points made on the evidence, and they are, as we have endeavored to show, without merit.

It is next claimed that the district court erred in charging the jury that time could not confer a right upon the defendant to injure the plaintiffs.

No prescriptive right of any sort is pleaded in the answer, but on the trial it was proved that the defendant’s ditch Avas completed in 1864, and has been constantly in use during the irrigating season ever since.

It seems to have been contended in the district court, as it has been here, that the injury to the plaintiffs was caused solely by the mere existence of the ditch, coupled Avith the act of God in producing the floods. Hence it was argued that, since the defendant could not be held responsible for the act of God, if it could show a prescriptive right to maintain its ditch, its defense would be made out. Counsel therefore contends that the instruction referred to was erroneous, and deprived it of the benefits of one of its defenses.

It is unnecessary to decide whether the instruction would have been erroneous in the sort of case supposed. It is sufficient to say that neither the pleadings nor the evidence in this case entitled the defendant to raise the question of prescription. Damages Avere not claimed on account of the mere existence of the ditch, but on account of careless management of the ditch, and the negligence proved was the failuro to provide a means of discharging the waters of the Avest fork into their natural channel beloAV the ditch, Avhereby they Avere diverted into the east fork. This Avas the plaintiff’s case, aud there was not a particle of evidence tending to prove that the defendant ever at any time exercised or claimed the right so to divert the waters of the west fork. It is true the danger has been impending ever since the west fork was securely dammed up and the waste-gate taken out, but no right of action accrued to the plaintiffs until the injury was done, and when it was done this action was commenced. Conceding that the instruction of the court may have been erroneous, it is a sufficient answer to the argument of counsel to say that its utmost effect was to take from the jury the question of prescription, and that is what ought to have been done.

The court also instructed the jury, in effect, that the plaintiffs were not precluded from maintaining this action by reason of the fact that when the injury occurred they were stockholders of the corporation.

The appellant does not deny that in general a corporation may be sued by its stockholders, but it is claimed that when an injury results to a stockholder, from the mere existence of the property of the corporation, it would be unjust to allow him to sell his stock and sue for damages.

This also presents a question which is not involved in the case. As has been shown, the injury to plaintiff did not result from the mere existence of the ditch, but from mismanagement, against which the plaintiffs constantly protested. We think that under the circumstances they had an undoubted right to maintain the action. And it makes no difference that they sold their stock béfore bringing suit. The purchaser of the stock alone, if anybody, can complain on that score.

The other points made by appellant are but a repetition of those which have been discussed, and are equally without merit.

The judgment and order appealed from are affirmed.  