Waste and Seepage Water: Liability or Asset

• Publication year: 2009
• Pages: 9

Wyoming Bar Journal 2009.

Vol. 32, No. 5, 9. Waste and Seepage Water: Liability or Asset

Wyoming Lawyer
Issue: December, 2009

Waste and Seepage Water: Liability or Asset?

By Sky D Phifer

The dry years were getting commonplace in Wyoming. Now that we've had a wet year, the problems, as well as utilization, of waste and seepage water are magnified. Problems such as flooded fields, flooded basements, and ditch bank washouts abound.

We're a fickle lot. Too little water, we complain about it. Too much, same solution. Thank God there are attorneys.

Liability

Thus sayeth the Lord Blackburn of the Court of Exchequer in Rylands v. Fletcher.

The person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape.(fn1)

That makes sense. The old "if you keep a tiger in the backyard, you're going to pay for any damage that tiger causes if it escapes" kind of analogy

Strict liability? Simple, straight forward rule? Not quite. The rule in Rylands v. Fletcher came with exceptions such as escape owing to Plaintiff's actions, or "vis major" [loss resulting from a natural cause without human intervention and that could not have been prevented by the exercise of due care] or "the act of God" or "the Queen's enemies" (Al Queda?).(fn2)

But alas the rule in Rylands v. Fletcherwith all its exceptions was not adopted in Wyoming, nor anywhere else in the West.(fn3)

Instead, at least since 1905 in Wyoming, "The well settled rule is that the owner of an irrigating ditch is bound to exercise reasonable care and skill to prevent injury to other persons from such ditch, and he will be liable for all damages occurring to others as a result of his negligence or unskillfulness in constructing, maintaining, or operating the ditch."(fn4) "In general, the traditional principles of negligence define the duties of an irrigator. See Wyo. Stat. Ann. 41-5-101 . . . Failure to exercise reasonable care in directing irrigation or waste water is negligence, and the ditch owner will be responsible for the damages neighbors suffer as a result of his negligence."(fn5)

Lawsuits have been maintained in Wyoming for negligence in maintenance resulting in ditch and reservoir seepage,(fn6) reservoir failure due to sabotage,(fn7) failure to plug an...