Dec. 2, 1910 · Delaware Superior Court · No. 6525 Del. 41, 2 Boyce 41
Mary E. Campbell vs. Alfred N. Walker
Summary: Action on the Case to recover damages for personal injuries alleged to have been sustained *44by the plaintiff through the negligent operation of an automobile by the defendant, on the twentieth day of August, A. D. 1909, on a public highway leading from Newark to Marshallton in New Castle County. The allegation being that the plaintiff was thrown from the wagon in which she was riding by the said automobile colliding with the same.
1. Highways — Use of Highway — Injuries to Travelers — Care Required.
In using a public highway, which is open to the common use of the people, whether using an automobile or other vehicle, all persons are bound to the exercise of reasonable care to prevent accidents, proportioned to the degree of danger in each case.
2. Highways — Use of Highway — Right to Use — Automobiles.
A traveler has an equal right to employ an automobile as a means of transportation and to occupy the public highways with other vehicles in common use.
3. Highways — Injuries on Highway- — Care Required.
The operator of an automobile on a public highway may act on the assumption that every other person traveling thereon will exercise ordinary care *42according to the circumstances, and will not negligently expose himself to danger, and will make an attempt to avoid it.
4. Negligence — “Ordinary Care” — Definition.
“Negligence” is the want of “ordinary care;” that is, the want of such care as a reasonably prudent and careful person would exercise under similar circumstances.
5. Negligence — Elements—Violation of Ordinance or Statute.
A violation of a city ordinance or a statute amounts to negligence in law, whether any positive or active negligence be proved or not.
6. Highways — Use of Highway — Overtaking and Passing — Violation of Statute.
The driver of an automobile, approaching a wagon from the rear on the right-hand side of the road, in violation of 25 Del. Laws, c. 120, §13, requiring the driver of any vehicle overtaking any other vehicle to pass to the left thereof, is guilty of negligence.
7. Highways — Use of Highway — Motor Vehicles — Warning.
The driver of an automobile, approaching a wagon on a public highway without giving warning of his approach as required by 25 Del. Laws, c. 120, §11, is guilty of negligence.
8. Highways — Use of Highway — Injuries to Travelers — Proximate Cause.
The driver of an automobile on a public highway is not liable for injuries resulting from a collision, unless his negligence caused the accident complained of.
9. Highways — Use of Highway — Injuries to Travelers — Contributory Negligence.
The driver of an automobile is not liable for injuries resulting from a collision with a wagon, if the negligence of the plaintiff caused the injury or contributed thereto.
10. Highways — Use of Highway — Injuries to Travelers — Contributory Negligence.
The driver of a wagon, who fails to go to the right side of the road, when he knew or by reasonable caution should have known that an automobile was approaching from the rear and desired to pass, was guilty of negligence, barring a recovery by him for resulting injuries.
11. Negligence — Contributory Negligence — Imputed Negligence— Driver of Vehicle and Passenger.
Where a passenger in a vehicle has no control over the driver, the negligence of the driver cannot be imputed to the passenger, so as to defeat the latter’s right of recovery against a third person for injuries resulting from the concurrent negligence of the driver and third person.
12. Highways — Use of Highway — Injuries to Traveler — Passenger— Contributory Negligence.
A passenger in a vehicle is bound to exercise due care as well as the driver, and it is no less the duty of the passenger, where he has the opportunity to do so, than of the driver, to learn of danger and to avoid it, if practicable.
*4313. Highways — Use of Highway — Action for Injuries — Questions for Jury — Contributory Negligence.
In an action for injuries caused by the collision of defendant’s automobile with the vehicle in which plaintiff was riding, it was a question for the jury whether the plaintiff could by due care have prevented the accident, and whether she did exercise the care to prevent the same which a reasonably careful person would have exercised under like circumstances.
14. Highways — Use of Highway — Injury to Traveler — Unavoidable Accident.
Where an injury to plaintiff, resulting from a collision of defendant’s automobile with the vehicle in which she was riding, occurred without the negligence of defendant, the injury was an unavoidable accident, for which plaintiff cannot recover.
15. Trial — Questions of Fact — Province of Jury.
When the testimony is conflicting, the jury should endeavor to reconcile it, so that the whole may be harmonious.
16. Evidence — Weight—Credibility—Province of Jury.
Where the testimony cannot be reconciled, it is the duty of the jury to estimate the value of the testimony on the respective sides, and give their verdict to that side on which the testimony is of the greatest preponderance and most worthy of credit.
17. Evidence — Weight and Sufficiency — General Rule.
In estimating the weight of conflicting testimony, the jury are to consider the witnesses’ means of knowledge of the facts of which they speak, their intelligence, apparent truthfulness, fairness, and any other facts or circumstances that show the reliability of their statements
18 Evidence — Weight and Sufficiency — Positive and Negative Testimony.
In an action for injuries caused by collision with defendant’s automobile the testimony of witnesses who say without qualification that the automobile horn was sounded, and that they heard it, at or near the point of the accident, is of much more weight than that of witnesses who merely say that they did not hear it.
19. Damages — Injuries to Person — Measure.
In an action for injuries caused by a collision in a highway, the verdict, if for plaintiff, should be for such sum as will compensate her for her pain and suffering in the past and such as may come to her in the future, resulting from the accident.
On May 31, 1924, W.R. Campbell et al. commenced a suit against Luke E. Walker et al. in the circuit court for Klamath county, asking that an injunction issue against defendants restraining them from interfering with plaintiffs in the irrigation of their lands with water from the south fork of Sprague river, and calling for an adjudication of their rights. The court thereupon made an order referring the matter to the state engineer for adjudication. The engineer proceeded to determine and adjust the water rights of the respective parties, as well as of the other water users on Sprague river; heard the testimony offered; made a complete survey of the grounds; and prepared his report. He then notified all parties concerned of the times and places where said report would be open for public inspection.
Thereafter appellants herein filed certain exceptions to, and instituted contests of, certain findings in said report. These contests and exceptions were then heard by the circuit court, who after a consideration of the testimony and the law, entered a decree confirming the adjudication of the state engineer, with a few minor modifications. Before entering the decree of confirmation, the court made an order consolidating the matter of the adjudication by the state engineer with the suit instituted by plaintiff. From a portion of the decree confirming the adjudication, defendants take this appeal. *377
The only part of the decree before this court on this appeal is as to the dating given to certain lands belonging to respondents.
The assignments of error are as follows:
That the trial court erred in the decision of all said contests, in determining that the pasturing of cattle on, and the cutting of hay from, land that is overflowed in spring freshets, the water rising from the river and covering the land higher than itself, then receding in summer from evaporation and natural drainage, constitutes an appropriation of water sufficient to irrigate said land after drainage during the entire irrigating season.
That the court erred in deciding that a squatter on state land, without application to purchase made, has such an interest in the land that he could initiate appropriation of water for said land, and especially by merely grazing his cattle or cutting hay thereon.
That the court erred in holding that such a squatter, by selling his improvements without having made application to purchase from the state, transferred such a water right, so initiated, to one who later applied to the state for purchase of the land.
That the court erred in determining in its decree that the depasturing of cattle or cutting hay on such a swamp determines the priority of the right to the the use of the water, rather than the date of drainage of such swamp and application of water in irrigation thereafter.
That the court erred in decreeing that respondents Campbell and Connor have prior dating in their rights to use water from the south fork of Sprague river than the appellant on land that was formerly naturally irrigated by Fritz creek and Deming creek, *378 which water of said creek was not diverted away from said land until long after the appropriation of water of said south fork by appellants, as decreed by the court, and was so diverted away from the land of said Connor and Campbell by themselves and their predecessors in interest.
[1.] Respondents moved to dismiss the appeal on the ground that appellants had failed to serve the notice of appeal on other water users on the stream, parties to this adjudication, who were adverse to the appellants. This motion was heretofore tentatively overruled with permission to renew it at the hearing on the merits.
Appellants are owners of land situate further upstream than the lands owned by respondents which are irrigated from the water of the south fork of Sprague river. The circuit court gave them priority datings to their land in Sec. 6, T. 37 S., R. 15 E. of W.M. as of March 25, 1883, and to their lands in Sec. 36, T. 36 S., R. 14 E. of W.M. priority datings as of February 25, 1884. To these datings they took no exception, but did take exceptions to the datings given to the priority datings of the water rights of respondents’ lands which had earlier datings than appellants’ lands, and from that part of the decree, only, they appeal. That is, by their exception they claim that the dating given to respondents’ lands should be subsequent to March 25, 1883, that being the date given to appellants. Any subsequent dating given to respondents’ lands would not adversely affect any of the other users of the water. Therefore, none of the other users need be made a party to this appeal as they are not adverse parties.
The motion to dismiss is overruled. *379
ON THE MERITS
The datings complained of by appellants were given to lands of respondent W.R. Campbell situate in Secs. 26 and 36, T. 36 S., R. 14 E. of W.M.: To lands of respondent A.S. Conner situate in Secs. 21, 16, and 22 of the same township: to lands of respondent Mary H. Dixon in Sec. 28 of same township: to lands of respondent Louis Gerber in Sec. 27 of same township: to lands of respondent John R. McAuliffe in Sec. 26 of same township: to lands of respondent G.W. Morgan in Sec. 20 of same township.
It appears from the evidence that the lands in question are commonly known as “swamp or overflowed land.” The south fork of Sprague river floods the lands of respondents during the spring freshets, furnishing a sufficient supply of moisture to make the lands valuable as hay land and for pasturage. The early settlers on these lands, the predecessors in interest of respondents, cut hay on parts of it and other parts they depastured. The waters would rise over the land generally during the spring months, commencing usually in February or March of each year, with successive rising and falling until sometime in the month of June; no two seasons being exactly alike either as to the time or the height to which the peak of the rise obtained. The fertility of the soil, coupled with this natural irrigation, produced wild grasses in abundance, which when cut and cured made a good quality of hay. The method adopted for reaping the benefits of this natural irrigation was by cutting the natural wild grasses for hay as the waters receded. The haying season lasted from early in July until September and sometimes even as late as October, depending upon the amount of precipitation of moisture during each *380 season. In fact, haying was carried on until the river began rising in the fall of the year. In addition to the natural irrigation, crude attempts were made by the first settlers to supplement nature by opening drains and constructing dams to cause the waters to spread over a greater portion of their lands.
The statement of this assignment of error would indicate that the lands were stagnant swamp lands. These lands undoubtedly were of a swampy nature and are frequently referred to by witnesses as “the swamp.” Webster defines swamp as “wet, spongy land; soft low ground saturated with water but not usually covered by it; marshy ground away from the seashore.” In fact, each community in which this character of ground is found has its own local use of the word.
The evidence shows that the south fork of Sprague river has its source in the hills southeasterly of the lands under consideration and flows northwesterly some distance through a canyon and emerges on to a flat some distance upstream from the lands of respondents, where its rate of speed is considerably diminished. It enters Section 36, T. 36 S., R. 14 E. of W.M. near the southeast corner thereof and crosses the section diagonally and enters Section 26 of the same township at the southeast corner thereof. Before reaching Section 36, its banks become lower and less defined until it almost loses its identity as a stream, and this characteristic is accentuated as it crosses Section 26 where it divides into sloughs and spreads out to a greater extent. This condition continues as it flows down through, or adjacent to, the lands of respondents. The testimony of W.W. Finley, *381 who came to the valley in 1882, is to the effect that during the spring freshets the river backed over the land and drained off slowly as the waters receded.
“In them days there was a small part of 27 that never drained off, a small part.” (Referring to Section 27, Township 36.)
To the same effect is the testimony of J.A. Parker, a witness for appellant, who visited the Sprague River valley during the winter seasons of ’77, ’78, ’79 and ’80 as a trapper, but was not present during the summer seasons until he finally settled in the country in 1886. In speaking of Section 26, Township 36, and the course of the south fork through that section, he said:
“Oh, it was divided into sloughs in 26. There wasn’t much of a channel through 26. It was filled with mud and sand and spread out.”
[2.] J.J. Owen, who came to the valley in 1879, testified that in May of that year the water covered considerable portions of Sections 26 and 36. F.O. Slade came to the valley in 1879, and sold his stock to W.W. Finley in the spring of 1882. Mrs. N.A. Finley, wife of W.W. Finley, Mike Parker, who came to the valley in 1880 with a survey party and Charles F. Nail testified to the same tenor and effect. Witness W.W. Finley testified that he built a dam, which has since been maintained, in the south fork of Sprague river in the summer of 1882 for the purpose of causing the water to spread over a greater portion of his lands. Many of the witnesses had no occasion to observe closely what was done on the lands in question through the summer months by the people who owned or worked the land. However, those that had an opportunity to observe all testified that hay was cut and the lands depastured, and that this condition existed on the lands of all the *382 respondents. The lands were not, as claimed by appellant, a stagnant swamp, but were rather overflow lands which the predecessors of respondents, at about the time fixed in the decree of the circuit court, took possession of and began to use the water for beneficial purposes.
The evidence shows that the lands of respondents under consideration are comparatively level and nearly on the same level as the bed of the south fork of Sprague river. The river as it flows through T. 36, 14 E. of W.M. has practically no banks. Any slight rise causes it to spread out over these lands. It divides into sloughs. The overflow does not return to the stream at the same point where it left it, but much farther downstream. These conditions are very similar to those surrounding Silvies river: In re Silvies River, 115 Or. 27 ( 237 P. 322).
[3.] Appreciating the difficulty of getting testimony of all the conditions that existed at the time the lands were first settled on, the trial court awarded the water rights as of the date shown by the evidence, upon which an honest effort was made to occupy or acquire title to the lands and to use both the lands and waters for beneficial purposes. In the very nature of things it was impossible for the early settlers to complete their irrigation plans immediately.
The trial court therefore applied the same process of reasoning to the claims of all the water users on this stream, and appears to have been largely guided by the intent and effort that was exhibited by these early settlers in appropriating nature’s bounty. This rule they applied to appellants as well as to respondents: Seaweard v. Pacific Livestock Co., 49 Or. 157 ( 88 P. 963). *383
“But a squatter upon public lands may, even by parol, transfer his claim and interest, whatever it may be in this respect, to another, and the rights of the subsequent purchaser and of his successors in interest, if asserted under the doctrine of prior appropriation, relate back to the date of the first appropriation by the person with whom there may be a privity of estate. It is well settled that the entryman need not necessarily have a complete title to the land in order to acquire a water right therefor.” Hough v. Porter, 51 Or. 318 (at page 421) ( 95 P. 732,98 P. 1083,102 P. 728).
“A mere claim of right to the land supplemented by a diversion and appropriation of the water is sufficient to entitle him to convey to another such interests as he may have, whether such appropriator be a mere squatter, or lessee, or other person in possession.” Id. Seaweard v. Pacific Livestock Co., 49 Or. 157 ( 88 P. 963).
This assignment has been abandoned.
[4.] “As a general rule, to constitute a valid appropriation of water, three elements must exist: (1) an intent to apply it to a beneficial use, existing at the time or contemplated in the future; (2) a diversion from the natural channel by means of a ditch, canal or other structure; and (3) an application of it within a reasonable time to some useful industry.
In the present case it may be said, in regard to the first requirement to constitute a legal appropriation of water, that it is the present bona fide design or intention of applying it to some immediate beneficial use. * * * When the water is utilized and the appropriator reaps the fruits thereof, in the harvesting of hay, grain or depasturing the land irrigated or in some other way, of course such intent plainly appears. * * * With practically no artificial works for irrigation, thousands of acres are naturally watered. When will the date of appropriation be fixed in such cases? * * * When the proprietor of the land accepts the gift made by nature * * *.” Re rights to waters of Silvies River, 115 Or. 27 (at pages 65 and 66) ( 237 P. 322). *384
This assignment of error has reference to the waters of Deming creek and Fritz creek, two streams tributary to the south fork of Sprague river. The appellants admit in their brief: “Indeed these creeks flow into the south fork below appellants’ land, and not any of their waters could be used on appelants’ land.” They contend, however, that if Campbell and Connor are given datings on the south fork of Sprague river below the confluence of these tributaries, then the dating would also extend to the tributaries, but that the circuit court fixed the datings on these creeks later than on the south fork. The record shows that the landowners who were using the waters of these creeks got together and agreed upon the priorities as between themselves. Priority is a relative term. It was of no particular concern to the users of the waters from these streams what the dating of the appropriation should be so long as the relative datings to which they had agreed should be maintained. Appellants entered into a stipulation regarding Deming creek; “* * * that the rights of A.S. Connor, L. Gerber, and W.R. Campbell in and to the waters of Deming creek shall be first satisfied * * * irrespective of the dates of priority upon any stream to which said Deming creek may be tributary.”
The foregoing admissions and stipulation remove the consideration of the waters of these two creeks from the controversy before the court.
The trial court did not hold as the first assignment of error would seem to indicate. The trial court held that the evidence introduced at the hearing on each of the exceptions and contests was sufficient to support the adjudications in fixing the priority datings for the use of waters on the respective tracts of land belonging *385 to respondents. At no time did the trial court find or adjudge any of the lands of respondents, under consideration, to be a swamp.
[5.] The trial court did not hold, as assignment of error number 2 would seem to indicate, that a squatter on state lands under all circumstances can initiate a water right that he may transfer. The trial court held that, under the facts and circumstances of this case, such predecessors in interest of respondents, who did not have title yet initiated a water right on land they occupied, had a right to sell their improvements and water rights to one who later acquired title to the land: Seaweard v. Pacific Livestock Company, supra.
[6.] Each of these cases must be determined on its own peculiar facts and circumstances; the chief objective being to preserve the rights of the individual and at the same time conserve the use of the waters of the state.
Finding no error, the decree of the circuit court is affirmed without cost or disbursements to either party in this court.
Appeal from District Court, Parish of West Feliciana; H.H. Kilbourne, Judge.
Action by Robert H. Campbell against Levin M. Walker for injuries sustained when struck by an automobile driven by defendant’s minor son. From an adverse judgment, plaintiff appeals.
Reversed and rendered.
Griffin T. Hawkins and J.J. Tritico, both of Lake Charles, and E.S. Muse, of St. Francisville, for appellant.
Borron, Owen Borron, of Baton Rouge, and James H. Kilbourne, of St. Francisville, for appellee.
This plaintiff was struck by the same car driven by defendant’s son as struck Savoie, and what is said in the companion suit of Savoie against this same defendant 183 So. 530, on the question of liability, applies to this case also, and the only question to decide in this case is the amount of damages to which Campbell is entitled.
Campbell received a fracture of the right scapula — shoulder blade — and a bruise on his right leg. He was in the United States Marine Hospital for about three weeks, and returned to the camp and did light work around the kitchen about six weeks after his injury. It appears that his shoulder and leg injury has recovered, except for occasional slight pain in the right shoulder. We do not consider the injuries very serious, and they are not of a permanent nature. He did suffer considerable pain with his shoulder for the first few weeks after the injury. We think an award of $500 for his physical injuries, pain and suffering, together with $45 for one and one half month’s loss of time at $30 per month, will adequately compensate him for the injuries.
For the reasons assigned, it is ordered that the judgment appealed from be and the same is hereby annulled, avoided and reversed, and it is now ordered, adjudged and decreed that the plaintiff, Robert H. Campbell, do have and recover judgment of the defendant, Levin M. Walker, in the full sum of $545, with legal interest thereon from judicial demand, and for cost in both courts.