Kunz v. Utah Power & Light Co. , 117 Idaho 901 ( 1990 )

BAKES, Chief Justice.

This case concerns an action brought in federal court by Kunz and various other landowners (“landowners”) against Utah Power & Light Company (“Utah Power”) for damages to real and personal property caused when Utah Power discharged water from an artificial storage system into a natural stream channel thereby flooding the riparian landowners’ property. The United States District Court dismissed all of the landowners’ theories of liability except for the negligence theory. The jury found that Utah Power was not negligent in its operation of the water storage system. The landowners appealed to the United States Court of Appeals, Ninth Circuit, alleging, among other things, that the district court erred in dismissing their alternative non-negligence theories. The Ninth Circuit was unable to determine whether, under Idaho law, an action may be maintained pursuant to strict liability, trespass, or private nuisance for damages caused by the storage and intentional, but non-negligent, discharge of water stored for irrigation and related purposes. Accordingly, the following three questions were certified to this Court by the Ninth Circuit 871 F.2d. 85, pursuant to I.A.R. 12.1:

(1) Under Idaho law, may one be held liable without proof of fault for damages caused by the intentional discharge of water?

(2) Under Idaho law, may one be held liable pursuant to a direct trespass theory for damages caused by the intentional discharge of water?

(8) Under Idaho law, may one be held liable pursuant to a private nuisance theory for damages caused by the intentional, but non-negligent, discharge of water?

In its order certifying these questions, the Ninth Circuit provided this Court with the following factual summary of the case as it existed in federal court.¹

Bear Lake lies on the border between Idaho and Utah. Bear River begins high in the Uinta Mountains of Utah, meanders back and forth between Utah and Wyoming, flows north some distance into Idaho, and finally turns back south into Utah, where it terminates in the great Salt Lake. Bear River does not naturally enter Bear Lake; instead it flows past it a few miles to the north. In about 1917, however, the predecessor of Utah Power constructed Stewart Dam on the river, diverting the river’s flow southward via canals into Mud Lake, which connects with Bear Lake. Bear Lake is thereby utilized as a reservoir. After the water reaches Bear Lake, it flows northward out of the lake, by gravity or through pumping, via an outlet canal to rejoin the old natural bed of Bear River some distance north of Stewart Dam. Between certain maximum and minimum limits (the height of the release gates and the depth of the pumping intake facilities), Utah Power can control the flow out of Bear Lake, and it can close the lake so that the flow continues directly down the river. The use of Bear Lake for water storage is the central feature of the whole system. The dam, canals, and control facilities are located within Idaho.

Utah Power operates the system under the authority of various federal statutes, a court decree, and the Bear River Commission (established by the Bear River Compact, a joint effort of Idaho, Utah, and Wyoming). The explicit purposes for which Utah Power is commissioned to operate the system are (1) to store water for irrigation throughout the valley in Idaho and Utah below the Bear Lake facilities and (2) to generate hydroelectric power. In addition, as Kunz I [Kunz v. Utah Power & Light Co., 526 F.2d 500 (9th Cir.1975)] conclusively established, Utah Power is required to use the facilities for flood control, particularly as to the spring runoffs of the watershed. Flood control is not one of the specified purposes imposed by the authorizations but is imposed by common-law negligence principles. See generally Kunz, 526 F.2d at 502-04.² Additionally, the Bear River Compact establishes a minimum irrigation reserve level requirement. Under the dictates of the compact, Bear Lake must be maintained at an elevation of 5914.61 [ft.].

Utah Power regulates the storage capacity of Bear Lake by adjusting the lake’s elevation. The key period is spring because during that period the runoffs cause a substantial rise in the lake’s elevation. The full capacity level of the lake is 5923.65 [ft.]. In regulating the lake elevation Utah Power balances the competing factors, including, irrigation, flood control, fish and wildlife, recreation, and power generation.

Landowners are numerous farmers who own or lease riparian lands, and a private irrigation company, located along the Bear River below Bear Lake. Prior to 1917 much of these lands were devoted to orchard grasses and wild hays, which were dependent upon flooding from natural spring runoffs to maintain their growth. The installation of the water storage system in 1917 harnessed the spring runoffs and stopped the flooding, so the ranchers converted their operations to alfalfa and cereal crops, which will not tolerate floods.

During the period between 1983-1986, the spring runoffs were unusually heavy. During this period, Landowners’ lands were flooded by stored and naturally flowing waters which were respectively discharged and “bypassed” by Utah Power from Bear Lake into the natural channel of Bear River in amounts exceeding the carrying capacity of the natural channel.

In its certification order the Ninth Circuit noted what it concluded was the existence of two distinct lines of Idaho cases that appeared to apply different liability standards in cases that involve flood damage. It described one line of cases as requiring a showing of negligence to hold a party liable for damages resulting from the escape, seepage, or percolation of water carried in an artificial channel, such as an irrigation canal or ditch. In these artificial channel cases non-negligence based theories of liability, such, as strict liability, trespass, or private nuisance, are not recognized. See e.g., Stephenson v. Pioneer Irrigation District, 49 Idaho 189, 288 P. 421 (1930); and Burt v. Farmer’s Co-operative Irrigation Company, Ltd., 30 Idaho 752, 168 P. 1078 (1917). The Court of Appeals described another line of our cases which involve situations where a natural channel is altered or obstructed through the placement of barriers which diminish the ability of the channel to carry its natural volume thereby causing flood damage to another riparian landowner. Under these factual circumstances, the injured riparian landowner may not be limited to a “negligence only” cause of action. See e.g., Campion v. Simpson, 104 Idaho 413, 659 P.2d 766 (1983); Milbert v. Carl Carbon, Inc., 89 Idaho 471, 406 P.2d 113 (1965); Boise Development Company, Ltd. v. Boise City, 30 Idaho 675, 167 P. 1032 (1917); and Fischer v. Davis, 19 Idaho 493, 116 P. 412 (1911). Our task essentially is to determine which line of cases more closely applies to the factual circumstances presented here, which involves an artificial water diversion and storage system (Bear Lake) which is subsequently discharged into a natural channel (Bear River) and thereafter causes flooding. For the reasons set forth below, we hold that the Stephenson and Burt line of cases applies to the facts of this case, and that negligence is the only basis for imposing liability on Utah Power. Accordingly, we respond in the negative to each of the certified questions.

The starting point in our analysis of which line of cases applies to the present case is to explain why a distinction exists between them. For instance, why does Idaho case law limit the theories of liability which can be brought against a irrigation system operator whose canal floods over its banks when other cases arguably place no such limitations on the theories of liability which can be brought against someone who erects a breakwater into the natural channel that causes damage to the property owner on the opposite bank of the stream? The answer to this legal question is based almost entirely on the unique circumstances of Idaho’s geography and economy. “The water of this arid state is an important resource. Not only farmers, but industry and residential users depend upon it.” Miles v. Idaho Power Company, 116 Idaho 635, 645-646, 778 P.2d 757, 767-768 (1989). Because Idaho receives little annual precipitation, Idahoans must make the most efficient use of this limited resource. “The policy of the law of this State is to secure the maximum use and benefit, and least wasteful use, of its water resources. Stickney v. Hanrahan, 7 Idaho 424, 63 P. 189 [(1900)]; Van Camp v. Emery, 13 Idaho 202, 89 P. 752 [(1907)]; Farmers’ Co-operative Ditch Co. v. Riverside Irr. Dist., 16 Idaho 525, 102 P. 481 [(1909)]; Coulson v. Aberdeen-Springfield Canal Co., 39 Idaho 320, 227 P. 29 [(1924)]; Reynolds Irrigation Dist. v. Sproat, 69 Idaho 315, 206 P.2d 774 [ (1949) ]; Ramseyer v. Jamerson, 78 Idaho 504, 305 P.2d 1088 [(1957)]; Mountain Home Irrigation District v. Duffy, 79 Idaho 435, 319 P.2d 965 [(1957)]; I.C. §§ 42-101 and 42-104.” Poole v. Olaveson, 82 Idaho 496, 502, 356 P.2d 61, 65 (1960). See also Gilbert v. Smith, 97 Idaho 735, 552 P.2d 1220 (1976).

Idaho’s extensive agricultural economy would not exist but for the vast systems of irrigation canals and ditches which artificially deliver stored or naturally flowing water from Idaho’s rivers and streams into abundant fields of growing crops. Many of these irrigation systems depend on dams which divert naturally flowing water, storing it in reservoirs and later releasing it for use on irrigated lands through canals and ditches. These artificial water storage systems serve an additional need for flood control, power generation, recreation, and provide beneficial environments for fish and wildlife.

This Court has long been cognizant of the crucial role which artificial water systems serve in this state. As a result, limited liability rules have been applied to operators of these artificial water systems. Early on, in Burt v. Farmers’ Co-operative Irrigation Company, Ltd., 30 Idaho 752, 767, 168 P. 1078, 1082 (1917) we wrote:

Under the common law one who diverted water from its natural course did so at his peril, and was held practically to be an insurer against damage which might result from such action. [Citing cases] The common law has been modified and relaxed in this and other arid states, so that the owner of an irrigation ditch is only liable for damages occurring to others as a result of his negligence or unskillfulness in constructing, maintaining or operating of the ditch. [Citing cases]. (Emphasis added.)

In Stephenson v. Pioneer Irrigation District, 49 Idaho 189, 194, 288 P. 421, 422 (1930), this Court wrote further that:

[The owner of an irrigation ditch] is not an insurer against all damages arising from his ditches, but is liable when negligent in the construction, maintenance, and operation thereof. He is, in other words, required to exercise reasonable or ordinary care only in the construction, maintenance, and operation of his ditches.

See also Albrethson v. Carey Valley Reservoir Company, 67 Idaho 529, 186 P.2d 853 (1947); Munn v. Twin Falls Canal Company, 43 Idaho 198, 252 P. 865 (1926); Nampa & Meridian Irrigation District v. Petrie, 37 Idaho 45, 223 P. 531 (1923); and Stuart v. Noble Ditch Company, 9 Idaho 765, 76 P. 255 (1904). The same policies which compelled this Court to limit the liability of operators of irrigation canals from suit for all but an action in negligence also extends to those entities which operate the artificial water diversion and storage systems, i.e., dams and reservoirs which supply the water to the irrigation canals.

This holding does not conflict with the other line of Idaho cases, identified by the Court of Appeals, dealing with the alteration or obstruction of natural streams. See Campion v. Simpson, 104 Idaho 413, 659 P.2d 766 (1983); Milbert v. Carl Carbon, Inc., 89 Idaho 471, 406 P.2d 113 (1965); Boise Development Company, Ltd. v. Boise City, 30 Idaho 675, 167 P. 1032 (1917); Fischer v. Davis, 19 Idaho 493, 116 P. 412 (1911). These alteration or obstruction of natural stream cases present facts distinct from those contained in the case before us. Generally, these alteration cases involve situations where one riparian landowner takes measures to improve or protect its land from the natural stream flow thereby causing an alteration in the natural stream flow which injures another riparian landowner, usually the one on the opposite bank of the stream.

In Campion, the two parties involved owned land on the opposite banks of the Wood River at a point where the river naturally flowed through three channels. The defendant filled in two channels to protect his property from flood waters thereby reducing the river’s overall channel capacity.³ When the spring flood waters came the carrying capacity of the remaining channel was exceeded and Campion’s property was damaged.

In Milbert, the parties owned land on opposite sides of the Palouse River. Milbert complained that Carl Carbon’s blasting operations reduced the carrying capacity of the Palouse River during a high spring runoff thereby causing flooding to his land.

In Boise Development Company, the city was sued for flood damage to riparian landowners along the Boise River which occurred after the city constructed embankments, dams and riprapping along the opposite bank of the river in order to protect riverside parkland from erosion.

In Fischer, dams, cribs and obstructions were erected by Davis in order to protect his property from the Boise River. These measures, however, reduced the carrying capacity of the river thereby causing flood damage to Fischer, the landowner on the opposite bank.

The legal standard applicable to these “alteration or obstruction” cases is described in Boise Development Company in which we stated that “liability in such cases [does not] rest solely upon the narrow ground of negligence, but rather upon the broad legal principle that no one is permitted to so use his own property as to invade the property of another.” 30 Idaho at 690, 167 P. at 1035. In Campion, we recently reaffirmed this standard as previously set forth in Milbert, Boise Development Company, and Fischer.

A riparian owner of land abutting upon a stream, whether navigable or non-navigable, has the right to place such barriers as will prevent his land from being overflowed or damaged by the stream, and for the purpose of keeping the same within its natural channel. A riparian owner, however, has no right to place obstruction into the stream for the purpose of changing the natural channel of the stream, or for any other purpose, that would do damage to the riparian owner on the opposite side or to owners of land abutting upon the stream either above or below.

104 Idaho at 415, 659 P.2d at 768 (emphasis omitted.)

These obstructions of the natural channel cases do not apply to the factual scenario set forth in the Ninth Circuit’s certification order. Utah Power, by diverting and storing, and later releasing the flood waters of the Bear River back into the natural channel, is carrying out its duty to “balance the competing factors, including irrigation, flood control, fish and wildlife, recreation and power generation.” Order Certifying Question to the Idaho Supreme Court, p. 3. Balancing these competing and often conflicting interests as it must, Utah Power is only held to a standard of reasonableness, ie., negligence. As the owner and operator of the diversion and storage system, Utah Power “is not ah insurer against all damages arising from [its storage system], but is liable when negligent in the construction, maintenance and operation thereof.” Stephenson v. Pioneer Irr. Dist., 49 Idaho 189, 194, 288 P. 421, 422 (1930). See also Albrethson v. Carey Valley Reservoir Company, 67 Idaho 529, 186 P.2d 853 (1947); Munn v. Twin Falls Canal Company, 43 Idaho 198, 252 P. 865 (1926); Nampa & Meridian Irrigation District v. Petrie, 37 Idaho 45, 223 P. 531 (1923); Burt v. Farmers Co-operative Irr. Co., Ltd., 30 Idaho 752, 168 P. 1078 (1917); and Stuart v. Noble Ditch Company, 9 Idaho 765, 76 P. 255 (1904).

Accordingly, the landowners’ claim against Utah Power, whether denominated strict liability, an action in trespass, or private nuisance, is not maintainable against Utah Power on the facts of this case in the absence of proof of negligence. The case of Bradford v. Simpson, 97 Idaho 188, 541 P.2d 612 (1975), cited and argued by the landowners, is inapposite, considering our conclusion that Utah Power’s liability, if any, can be based only on negligence. In Bradford we reiterated the legal standard applicable to riparian landowners who obstruct the natural flow of a stream thereby causing damage to another riparian landowner. We further noted that “[s]uch obstructions have been characterized by the courts as continuing trespasses or nuisances.” 97 Idaho at 192, 541 P.2d at 616. As discussed above, the legal standard elucidated in the Campion line of cases, including Bradford, does not apply under the factual scenario presently before us. Furthermore, our prior cases dealing with flooding from artificial water storage and diversion systems do not refer to trespass in the usual sense. Rather, our case law in this area refers to the concept of “trespass on the case,” the common law description of an action based on negligence principles, and does not provide for absolute liability where, for instance, a reservoir operator non-negligently discharges water which causes flooding. Verheyen v. Dewey, 27 Idaho 1, 9, 146 P. 1116, 1118 (1915) (“[T]he Nampa and Meridian Irrigation District would be liable if it had negligently emptied said reservoir and injured the property of the plaintiff.”). See also Munn v. Twin Falls Canal Company, 43 Idaho 198, 252 P. 865 (1926) and Boise Development Company, Ltd. v. Boise City, 30 Idaho 675, 167 P. 1032 (1917).

The landowners additionally rely on Smith v. King Grazing Association, 105 Idaho 644, 671 P.2d 1107 (Ct.App.1983) to argue that a cause of action in private nuisance could be maintained against Utah Power. Again we disagree. In Smith, the Court of Appeals noted that “courts generally have not applied the sweeping principle of nuisance law to surface water cases.” 105 Idaho at 646, 671 P.2d at 1109. In any event, the Smith court held that an upper landowner may alter the flow in a natural watercourse “so long as it remains within the watercourse.” 105 Idaho at 647, 671 P.2d at 1110. Under this analysis, Utah Power acted within its legal rights by discharging stored water within the natural watercourse of the Bear River.

Accordingly, we hold that under Idaho law the answer to each of the three certified questions, ante at 902, 792 P.2d at 927 is: No.

Costs, if any, on appeal to be fixed by the United States Court of Appeals.

JOHNSON and McDEVITT, JJ., and SCHROEDER, J. Pro Tem., concur.

1 . Although the parties in their briefs and arguments before this Court presented facts outside the Ninth Circuit’s certification order, we consider only those facts contained in the order.

2 . In Kurtz I the United States Court of appeals described the duty of flood control which Utah Power owed to downstream riparian landowners as follows:

Utah Power must carry the responsibility for avoiding damaging floods. We do not say that it is absolutely liable for flooding, but it must recognize the dependent position in which downstream ranchers have been placed and act accordingly to try, consistent with its other duties, to control floods. Utah Power, therefore, had a duty of care on which liability for negligent damage can be based.

526 F.2d at 504.

3 . The operation of an artificial water diversion and storage system may at times diminish the carrying capacity of the natural stream into which it empties due to a lack of natural “scouring" which occurs during spring runoff. Such "scouring" clears the streambed of silt deposits thereby maximizing the stream’s carrying capacity. We are not aware of any diminished carrying capacity in the Bear River due to the operation of the Bear Lake water storage system. The certification order only indicates that “naturally flowing waters ... were respectively discharged and “bypassed' by Utah Power into the natural channel of Bear River in amounts exceeding the carrying capacity of the natural channel." (Emphasis added.) We understand this to indicate that the amounts released into the natural channel of the Bear River would have caused flooding to the landowners regardless of whether the carrying capacity of the Bear River was diminished by the operation of the water storage system. Even so, we do not liken the possible diminution in the carrying capacity of a natural steam channel caused by the operation of a public reservoir to that diminution caused when a private party obstructs or diverts a natural stream channel for private gain. This position follows logically from the initial factual premise — the law of Idaho has developed to encourage the non-negligent management of Idaho’s limited water resources in order to advance the economy and livelihood of Idaho’s citizenry.