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Provincial Bank of Ireland (89 L. T. Rep. 79; (1903) A. C. 309). That was a case where a customer of an Irish bank, having overdrawn his account and being pressed by the bank, undertook by letter to deposit a title deed of an estate in Ireland as security for his overdraft; and it was held that such letter amounted to an agreement to create an equitable charge, and ought to have been registered under 6 Anne (Ir.), ch. 2. Lord Macnaghten said: “In such a case as this it is not necessary that there should be an agreement for forbearance for any definite or particular time. It is quite enough if you can infer from the surrounding circumstances that there was an implied request for forbearanec for a time, and that forbearance for a reasonable time was in fact extended to the person who asked for it. The point came before Mr. Justice Parker in Wigan v. English and Scottish Law Life Assurance Association (100 L. T. Rep. 34; (1909) 1 Ch. 291). There H. was the holder of a policy of assurance on his own life conditioned to be void if the assured died by his own hand, “but without prejudice to the bona fide interests of third parties based on valuable consideration.” H., being indebted to W. in large sums of money, caused to be prepared and executed an assignment of the policy to W. by way of mortgage. W. had not asked for further security, but negotiations were proceeding with a view to giving time for payment of the debt. W. had no notice of the assignment until after H.’s death by his own hand. Held that there was no valuable consideration for the assignment. In the course of a luminous judgment, in which Mr. Justice Parker reviewed the authorities, his Lordship expressed his opinion “that the mere existence of a debt from A. to B. is not sufficient valuable consideration for the giving of a security from A. to B. to secure that debt.” His Lordship further said: “If there be no express agreement, the law may very readily imply an agreement to give time. It may not be a definite time, but to forbear for some indefinite time in consideration of the security being given. And further than that, if there is no express agreement, and no agreement can be implied at the time and under the circumstances at and under which the indenture giving the further security is executed, yet if that security be communicated to a person who could otherwise sue on the debt, and on the strength of that security he does in fact forbear to sue on the debt, he does give that time with the object of securing which the security is presumably given, and then I think it appears on the cases that there is sufficient consideration, though in a sense it is an ea post facto consideration, for the security which is given.” The question has recently come before the Court of Appeal in Clegg v. Bromley (106 L. T. Rep. 825; (1912) 3 K. B. 474). That was a case where a lady, being indebted to her husband in a large sum of money, executed an assignment in his favour whereby, after reciting that he had requested her to give him further security, which she had agreed to do, she assigned to him all the interest, money, and premises to which she was or might become entitled under or by virtue of a certain action, or by any compromise or agreement which she might obtain in or consequent upon such action, subject to redemption; and it was held that (1) the assignment was made for good consideration; and (2) that it was not an assignment of a mere expectancy or cause of action, but was an assignment of property—that is, of the fruits of an action as and when recovered —and was not consequently void under 13 Eliz. ch. 5. Lord Justice Waughan Williams in the course of his judgment said, referring to Wigan v. English and Scottish Law Life Assurance Association before cited: “In the early part of his decision Mr. Justice Parker affirms the proposition with which I should imagine everyone agrees—that is, that the mere existence of a debt is not good consideration in itself.” Lord Moulton (then Lord Justice Fletcher Moulton) said that several cases established “ that the mere existence of an antecedent debt is not good consideration for an assignment even by way of further security.” Mr. Justice Parker, sitting as an appeal Judge, referring to Wigan v. English and Scottish Law Life Assurance Association, said: “ The ratio decidendi of that case was clearly that there could have been no forbearance or alteration of position on the part of the mortgagee on the strength of the new security, because he had no notice of it whatever. I think that where a creditor asks for and obtains a security for an existing debt the inference is that, but for obtaining the security, he would have taken action which he forbears to take on the strength of the security.” The case of Clegg v. Bromley may also usefully be read in connection with an article in this journal of the 27th January, 1912, p. 294, as to “the assignability of a right to sue to set aside a deed obtained by fraud.”
LIABILITY OF OWNER OF IRRIGATION DITCH FOR DAMAGES ARISING FROM ITS CONSTRUCTION AND MAINTENANCE.
The rule is well settled that the owner of an irrigation ditch must exercise reasonable care and skill to prevent the ditch from causing injury to others. Consequently he is liable for all damages sustained by others as a result of his negligence or unskillfulness in constructing, maintaining, or operating the ditch."
In the California case just cited (Bacon v. Kearney, etc.), the rule was stated thus: “The owner of an artificial ditch, through which water flows for domestic use or for irrigation, as in this case, is bound to keep such ditch in repair, so that the water running therein will not break through or escape therefrom and damage the land or crops of another, and if through any fault or negligence of his in not properly managing the ditch, or keeping it in repair, the water does escape therefrom and injures the lands and crops of another, he is liable, and the law will hold him responsible for whatever damage may be done.” The defendant in this case quoted numerous authorities to the effect that “one who does a lawful act upon his own premises cannot be held for injuries resulting, unless the act was done in a way to indicate negligence.” The Court agreed with this, but shewed from the evidence that defendant was negligent in causing the injury complained of. The ditch owner is not liable merely because the break or escape occurred, but only if it occurred through his negligence, and this negligence must be shewn. It is not even a case of res ipsa loquitur and negligence is not presumed from the mere fact that a break or escape occurred, unless such presumption is especially enacted by statute.” Ditch companies are required by statute to construct bridges over such ditches as cross public highways and are liable for damages caused by the failure to maintain such damages.” An irrigation district and a contractor have been held liable for damages to land arising from seepage from a canal during its construction.” And one who irrigates his land by means of a ditch supplied by an artesian well is liable to an adjoining landowmer for injury caused to his land by water percolating from the ditch where the injury might have been prevented by the defendant.” An irrigation company was held liable for damages to plaintiff where it permitted the water to overflow the banks of its ditch and flood plaintiff's land, though it had been warned that the ditch was running too full and that the water was in danger of escaping unless the flow was diminished. Defendant was held not to avoid the consequences of its own negligence on the plea that gophers burrowed the banks and that, therefore, the overflow was the result of unavoidable accident. Its liability arose from its failure to exercise ordinary care in preventing the escape of water." Where alkali water percolated from a canal and injured an orchard, it was held that the defendants were liable if they were negligent, irrespective of whether they operated their canal as others did." A ditch company, with the right to maintain its ditch over the lands of another, the company using as a part of its ditch a natural depression, draw or gulch, is liable to the landowner for injury to stock which fell into the depression, because of the company's failure to guard it. The fact that the landowner’s stock was driven toward the ditch by a snowstorm did not make that fact the natural and proximate cause of the injury. A person is not liable, as a general rule, for anything beyond the natural, ordinary and reasonable consequences of his conduct. But storms are liable to occur. They are natural and not extraordinary, and, therefore, to be guarded against by providing barriers to keep cattle from getting into dangerous places. In this case, the failure to guard the ditch properly was the case of the loss of the cattle and the damage was not so remote as to exonerate the company.” An employee of a ditch company who opens a waste gate to relieve the canal of an overplus of water and thereby causes injury to * Turpen v. Turlock Irrigation Dist., 141 Cal. 1, 74 Pac. 295. * Parker v. Larson. S6 Cal. 236. 24 Pac. 989. * Greely Irrigating Co. et al. v. House, 14 Colo. 549, 24 Pac.
* Bacon v. Kearney Vinyard Sundicate. 1 Cal. App. 275, 82 Pac. S4: Greely Irrigation Co. v. House, 14 Colo. 549. 24 Pac. 323; McCarty v. Boise City Canal Co., 2 Idaho 225, 10 Pac. 623; Big Goose, etc., Ditch Co. v. Morrow, 8 Wyo. 537, 59 Pac. 159.
* Water Rights in the Western States, Wiel, 3rd Ed., p. 489, and cases there cited covering arid and semi-arid states.
* Farmers' High Line Canal, etc., Co. v. Westlake, 23 Colo. 26, 46 Pac. 124; R. S. Colo., 1908, Sec. 3235.
a landowner, makes the company liable therefor.” And a municipal corporation which is the owner of an irrigating ditch is liable for injuries arising from the percolation of water therefrom.” Liability in the Absence of Negligence.—Where the ditch owner is not negligent, he is not liable. Neither is he liable where the injury is due to an act of God or an inevitable accident. Thus, an irrigation canal owner is not liable for injuries resulting from a break in his canal which is caused by the heaviest rainstorm that ever occurred in his locality and where his canal was safeguarded by waste-ways and culverts which had never before failed to carry off the waste water, and by ditch walkers.” The same is true where the break in the defendants’ ditch is caused by the accidental fall of a tree.” But a ditch owner is liable for damages resulting from his failure to provide against melting snow and floods and rainfalls as may reasonably be anticipated.” And though the ditch is injured by an inevitable accident, it is the duty of the owner to prevent injury to others by making repairs at the earliest opportunity. Thus where a ditch was allowed to remain unrepaired for two or three weeks it was held to be negligence per se.” Ditch owners are liable in damages for trespass to owners of land across which they have constructed ditches without authority, as, for illustration, in the following rather unusual case: Defendant constructed a ditch through land entered by plaintiff under the laws of the United States for the reclamation of desert-land. Plaintiff relinquished this entry and at the same time homesteaded the land. Defendant claimed that on the relinquishment of the desert-land entry, the land became public land of the United States and a right-of-way at once vested in defendant for its ditch under the laws of Congress giving right-of-way for such ditches over the public lands. But the Appellate Court could not see the force of this contention and said that the * Stuart v. Noble Ditch Co., 9 Idaho 765, 76 Pac, 255. * Boulder v. Fowler, 11 Colo. 396, 18 Pac. 337. * Grand Valley Irrigation Co. v. Pitzer, 14 Colo. App. 123, 59 Pac. 420. * Tenny v. Miner's Ditch Co., 7 Cal, 335. * Chidester v. Consolidated Ditch Co., 59 Cal. 197; Lisonbee v. Monroe Irrigation Co., 18 Utah 343, 54 Pac. 1009, 72 Am. St. Rep. 784; Burbank v. West Walker River Ditch Co., 13 Nev, 431; Arave
v. Idaho Canal Co., 5 Idaho. 68, 46 Pac. 1024. * Catlin Land etc., Co., v. Best, 2 Colo. App. 4S1, 31 Pac. 391.