land and that we must go away. We have had so many sorrows in dealing with the white man that when these young men of the great white race (pointing to the convicted defendants) fired their guns into our camp, our young men and the women told me that they would go without punishment because they were white men, and that we might as well wander away somewhere and give ourselves up as lost beings for whom nobody cares. Then your head messenger (pointing to the sheriff) came and told us that the men who killed our people with their shot guns had been caught, that a council of white men would be held and if they were shown to have done this bad work they would be punished. Now we have learned that the white man will punish these young men who shot at our people and I am no longer blind. I can see my way before me. I see hope for my people. I have found out that the white man will do justice to the Indian, and I give my thanks to the chief of this council and to all who have taken part in it for the justice of its decision."

The chief then slowly walked back to the benches at the rear of the court room and it was evident from the countenances of all present that his speech had made a profound impression. It may be interesting to state that in speaking the old chief seemed to be entirely at ease. He gesticulated freely. When he spoke of being blind he closed his eyes and placed his right hand over them. Sometimes he knelt on the floor and sometimes sat on the floor. At all times he was graceful, and even in his strange attitudes appeared to be governed by a peculiar dignity. As he spoke of his doubts regarding the sincerity and justice of the white man he shook his head slowly, and when he affirmed his belief that the white man was really governed by justice he raised his head, shook his long hair, and his eyes sparkled with the delight of a spirited intelligence. Altogether, the speech of the Ojibway chief was a remarkable incident in the history of Northern jurisprudence. JOHN W. WILLIS.

St. Paul, Minn.

ACT OF GOD AS A DEFENSE IN AN ACTION FOR DAMAGES BROUGHT AGAINST OWNER OF IRRIGATION DITCH, CANAL, OR RESERVOIR.

Definitions: "The act of God signifies, in legal phraseology, any inevitable accident occurring without the intervention of man, and may, indeed, be considered to mean anything in opposition to the act of man, as storms, tempests, and lightning. The above maxim may therefore be paraphrased and explained as follows: "It would be unreasonable that those things which are inevitable by the act of God, which no industry can avoid, nor policy prevent, should be construed to the prejudice of any person in whom there has been no laches."

Human Agency Excluded: From this definition it is seen, and the cases are in accord, that all idea of human agency must be excluded in order that the defense of act of God be made available. Should the intervention of man be shown to have contributed to the injury, it cannot be held to have been the act of God. This principle is illustrated in the case of California Dev. Co. v. New Liverpool Salt Co.3 Excerpts from this case are to be found on page 3120 Kinney on Irrigation, 2nd ed. as follows: "The evidence shows con

clusively that it was, defendant's method of constructing the intakes that resulted in turning the floods of the Colorado River into the Salton Sink," and the result of which was the destruction of a large amount of farming land. And, although "the fact that an extraordinary flood came down the river contributing to the disaster," the Court held that that fact did not relieve the defendant from liability. If it had not been for the intervention of man in the construction of the works, the flood,

(1) Broom's Legal Maxims,. pp. 227, 228, and approved in Kinney on Irrigation, 2nd. Ed. p. 3119.

2) Polach v. Peoche, 25 Cal. 516, 95 Am. St. Rep. 115.

(3) 172 Fed. 792, 97 C. C. A. 214.

although extraordinary, would have passed down the river without doing damage, as it had done on previous occasions. Therefore, the Court held that the injuries could not be regarded as having been caused by the act of God, but must be regarded as the act of the ditch owner and for which they were held liable.

Act of God and Inevitable Accident Contrasted: It has been maintained that the term "inevitable accident" is synonymous with "act of God." But while it is clear that every act of God is an inevitable accident, yet it is equally clear that not every inevitable accident is an act of God, in the legal sense.

But

In Merritt v. Earle, it was said: "The expressions act of God' and 'inevitable accident' have sometimes been used in a similar sense and as equivalent terms. there is a distinction. That may be an inevitable accident which no foresight or precaution of the carrier could prevent; but the phrase, 'act of God' denotes natural accidents that could not happen by the intervention of man, as storms, lightning and tempest. The expression- excludes all human agency."

A Mixed Question of Law and Fact: "The act of God' as that expression is known in the law, is a mixed question of law and fact. The defining and limitation of the term, its several characteristics, its possibilities as establishing and controlling exemption from liability, are questions of law for the Court; but the existence or non-existence of the facts upon which it is predicated are questions for the jury." Correct Rule Where Two Causes Combine to Produce Injury: In a Montana

case, the Court, in sustaining an instruction to the jury, said: "They, (the jury), must have understood the instruction to mean, that if they found from the evidence, (1) that there were two causes which combined to produce the damage, (2) that both of such causes were in their nature proximate, and (3) that one of such causes was the culpable, negligent act of the defendant and the other an act of God, then the defendant should be held liable for the loss proximately resulting from two such concurring causes, provided, they should further find from the evidence that the loss would not have been sustained but for such culpable, negligent act of the defendant."

Act of God Must be Properly Pleaded: If an act of God rendering performance 'impossible, is relied upon as a defense, it must be pleaded.s

What Will or Will Not Constitute the Defense: What will or will not constitute a defense of act of God will depend upon the facts of each particular case. is a question to be determined by the jury under proper instructions from the court."

It

Illustrative Cases: The defendant company was the owner of an irrigation canal. Plaintiff was the owner of a small tract of improved land lying under the canal. During one of the heaviest rainstorms known to have occurred in the vicinity, the canal overflowed and deposited a large amount of debris on plaintiff's land destroying fruit trees and doing other damages. Plaintiff alleged that the damage occurred through the negligence of the defendant for the reason that, (1) the canal was negligently constructed, in that, for a distance of four and one-half miles east of the plaintiff's land no waste way or other means was provided for carrying off the surplus waters; (2), that the defend

(7) Mulrone v. Marshall, 35 Mont. 238, 88 Pac. 797; Grand Valley Irrig Co. v. Pitzer, 14 Colo. App. 123, 59 Pac. 420.

(8) Pengra v. Wheeler, 24 Ore. 532, 34 Pac. 354, 21 L. R. A. 726.

(9) Mulrone v. Marchall, supra.

was collected in the drainage ditch and caused to flood a portion of plaintiff's land, washing it away and rendering it unproductive.

It appears that the defendant having

carry off the water from the mesa above it and that these canals had previously been sufficient to carry off the waste and storm water and to prevent damage to property; that the ditch rider employed by the defendant company was at his place of duty at the head of the canal during the storm and that he or any number of others, had they been present along the canal during the storm near plaintiff's land, could not have prevented the damage complained of; that so far as the evidence disclosed, the damage proximately resulted, not from human agency, but from one of those unexpected, unanticipated supreme causes over which the defendant had no control and which no reasonable precaution could have prevented. The Court held that it was clear that under the circumstances, defendant could not be held liable.10

Flood Water That Can Reasonably Be Anticipated and Controlled: The defendant company was the owner of an irrigation canal. Plaintiff was the owner of a small tract of land situated under the canal and irrigated from it. Plaintiff charged that the defendant owned a ditch which it used to carry off surplus waters from lands irrigated by it; that such ditch extended through plaintiff's land and had been improperly constructed and negligently maintained; that by means of such defective construction and want of repair, the drainage from the higher lands irrigated from defendant's canals

across plaintiff's land, failed to give it sufficient capacity to hold all water that might reasonably have been expected to accumulate in it; and that defendant failed to enlarge and repair it from time to time as experience, observation and safety dictated. It appears, also, that a flume of another canal company obstructed the flow of water in the ditch.

Under these circumstances the Court

held that while the defendant company was only required to anticipate and prepare to meet such emergencies as might reasonably be expected to arise in the course of nature and was not required to meet unlooked for and overwhelming displays of adverse power—such as storms of such unusual violence as to surprise cautious and reasonable men; yet, as it allowed breaks in the banks of the waste ditch to remain an unreasonable length of time and that the ditch was inadequate to hold all the water that was allowed to accumulate in it in the absence of extraordinary and overwhelming emergencies, the defendant had failed to use such judgment, diligence and care in the construction and repair of its ditch as the law required and were therefore liable for the damage done plaintiff's land.11

Damage Caused by Break in Ditch Injured by Inevitable Accident: Where a break in a ditch was caused by an inevitable accident which allowed its waters to escape and damage plaintiff's land, but the break was allowed to remain unimpaired for two or three weeks, it was held to be the duty of the owner of the ditch to prevent injury to others by making repairs at

(11) Lisonbee v. Monroe Irr. Co., 18 Utah 343, 54 Pac. 1008, 72 Am. St. Rep. 784; Arave v. Idaho Canal Co., 5 Idaho 68, 46 Pac. 1024.

the earliest practicable moment and that a failure to do so was negligence per se.12 Act of God As a Defense for Failure to Deliver Water Under Contract: In an action for rent under a lease of water power, defendant, by way of counter-claim, alleged that plaintiff failed, neglected, and refused, as per the terms of the lease, to repair the dam and race within ten days after the water had fallen to an average winter stage. The Court found that the water, within the ten days' limit, had risen so as to render the making of repairs, within that time, impossible, thus releasing the lessor from liability for breach of the covenant if he made the repairs as soon as possible.13

In the case just cited, it is said that where a party, by his contract charges himself with an obligation possible to be performed, he must make it good unless its performance is rendered impossible by the act of God, the law, or the other party. Unforeseen difficulties, however great, will not excuse him. The act of God will dispense with the performance of the contract, but to bring the case within the rule of dispensation it must appear that the thing to be done cannot by any means be accomplished; for if it is only improbable or out of the power of the obligor, it is not in law deemed impossible.

In an action for damages for failure to furnish water for irrigation purposes, the defendant alleged a scarcity of water caused by a drought such as was not contemplated by either party and could not have been anticipated and provided against by the exercise of ordinary diligence and foresight, and that therefore, the failure of the defendant to furnish more water than was supplied, was caused by the act of God. The Court held that the facts "do not tend to show that the source of the water supply was wholly exhausted so as

(12) Catlin Land, etc., Co. v. Best, 2 Colo. App. 481, 31 Pac. 391.

(13) Pengra v. Wheeler, 24 Ore. 532, 34 Pac. 354, 21 L. R. A. 726; Kinney on Irr., 2nd ed., p. 3122.

to render the irrigation of the land physically impossible; and for this reason the act of God is not involved."1

As has been seen, in order to render the act of God an excuse for failure to

perform, it must be clearly shown that the failure was chargeable to vis major and not to negligence.15

The contract may provide against a failure to furnish the full amount of water on account of accident or a failure in the

usual supply of water and in such cases

to pro rate the supply; but it cannot provide against negligence.

An irrigation company, however, which contracted with plaintiff to furnish him. water for irrigation purposes, the contract providing against responsibility for any deficiency of water caused by act of God, forcible entry, hostile diversion or obstruction, or temporary damage by flood or other accident, cannot withhold its stipulated supply of water from plaintiff to his damage by using part of the water to turn a new water wheel it had installed subsequent to its contract with plaintiff; and further, defendant could not excuse itself by claiming that the water turned into the canal to propel the new wheel, was salvage water, that is to say, water saved by defendant that was permitted by its original dam to waste at the time the contract with

plaintiff was entered into.10

Burden of Proof: The complaint must allege with particularity the negligence of the defendant for the gist of the action. is negligence; and the burden of proof, in the first instance, is upon the plaintiff to establish the allegations of his complaint.

The allegations of the complaint should be plain, definite, and unequivocal. They should state what the injuries were with

(14) Anderson v. Adams, 43 Ore. 621, 74 Pac. 215; Catlin Land, etc., Co., v. Best, supra.

(15) O'Neil v. Ft. Lyon Canal Co., 39 Colo. 487, 90 Pac. 849; Catlin Land, etc., Co. v. Best, supra; Jackson V. Indian Creek, etc., Co., 16 Idaho 430, 101 Pac. 814.

(16) Evans v. Prosser Falls L. & P. Co., 62 Wash. 178, 113 Pac. 271.

In reservoir cases, in states like Colorado, where the owner is `made an insurer by statute it is not necessary to allege or prove the negligence. A case is made. prima facie, at least, when the damage and cause, by breaking of the reservoir, are established.17

The defendant, if he relies upon special defense, as the act of God, must allege it and prove it.18

Measure of Damages: In actions for injury to land on account of its being covered with trash, sediment and debris from the breaking of defendant's ditch or reservoir, the measure of damages is the difference between the value of the land immediately before the injury and its value immediately after the injury. The cost of clearing the land of the trash, sediment and debris is not alone the measure of damages, but rather evidence to be considered in connection with other circumstances in estimating the damages. 19

In case of permanent injury to the land, but where it is not totally destroyed, the measure of damages is the difference between the actual cash value of the land immediately before the injury and its actual cash value immediately after the injury.20 In estimating the measure of damages a distinction must be made between the permanent or temporary injury to the land and the permanent destruction of the land. If the land is totally destroyed, the owner is entitled to recover the actual cash value of the land at the time of the taking or destruction; but, if the land is permanently injured, but not totally destroyed, the owner will be entitled to recover the difference between the actual cash value at the time immediately preceding the injury

(17) M. A. S. R. ed., Sec. 3730, R. S. '08, 3204; Larimer County Ditch Co. v. Zimmerman, 4 Colo. App. 78, 34 Pac. 1111.

(18) Pengra v. Wheeler, supra.

(19) Mustang Res. Co. v. Hessman (Colo.). 112 Pac. 800.

(20) Young v. Extension Ditch Co., 13 Idaho 174, 89 Pac. 296.

the condition it was immediately after the injury. If the land is but temporarily injured, the owner is entitled to recover the amount necessary to repair the injury and put the land in the condition it was in at the time immediately preceding the injury.21

In actions of this kind, the principle of actual compensation governs, and the damages awarded must be confined to the actual damages sustained. Such damages must be proven with some degree of certainty and cannot be left to the guess, conjecture or speculation of the jury as in cases of tort against the person.22

Damages to Crops: Where the land is not injured, but the owner is prevented from raising a crop on it, the rental value of the land, with legal interest thereon, is the measure of damage.23

In a Colorado case, it was stated, that plaintiff's damage was the difference between the amount realized from the crops the land did produce and the amount that I would have been realized therefrom had the water been furnished, less the added cost of raising, harvesting, and marketing the product.24 In California, however, the rule seems to be as follows: "The proper measure of damages in a case like this is the difference between the rental value of the land with water and its rental value without it and the lawful price of the water should also be taken into consideration and deducted. If the land had been actually taken from the plaintiff by the defendant during the period in question, the company would have been liable only for its rental value during the time plaintiff was deprived of it. Conjectural profits. of the kind sought here (profits on crops) cannot be recovered as damages in such cases. They must be damages capable of ascertainment by proof to a reason

(21) Ibid. (22) Ibid.

(23) Ibid.

(24) Northern Colo. Irr. Co. v. Richards, 22 Colo. 450, 45 Pac. 423.