Judgment reversed and case remanded for trial.
Shute & Elsing, of Phoenix for appellant.
Kramer, Morrison, Roche & Perry, of Phoenix, for appellee.
Stanford, Justice. La Prade, C. J., and Udall, Phelps, and De Concini, JJ., concur.
[71 Ariz. 255] This is an appeal from an order and judgment of the Superior Court dismissing appellant's complaint against the appellee, Roosevelt Irrigation District.
George Taylor, deceased husband of this appellant, arranged with David A. Grout, the other defendant herein, who was in charge, control and legal possession of a portion of the Southeast quarter of section 12, Township 1 North, Range 1 East, Maricopa County, Arizona, to pasture [71 Ariz. 256] certain cattle upon such land. Grout, it is alleged, represented to Taylor that the enclosure was safe, suitable and fit for the purpose of grazing and feeding cattle. Prior to August 15, 1947, and pursuant to agreement, 396 head of cattle were turned into said place.
The appellee Roosevelt Irrigation District maintained a large irrigation canal running through the pasture in question, which was approximately 10 feet in depth by 30 feet in width. The bottom was lined with cement, extending upwards for approximately 5 feet on each side, and the walls from the top were so precipitous that animals falling therein could not climb out.
After said canal was constructed, it was enclosed by a mesh wire fence approximately 4 1/2 feet in height and fastened to wooden posts. In cleaning the canal, it is alleged that appellee negligently burned a number of posts along the fence causing the posts and fence to fall, and that such condition was known to appellee and unknown to appellant.
Thereafter, on or about the night of August 15, 1947, 37 head of appellant's cattle, finding the opening in the fence, and being attracted by the water, went into the canal and were trapped and drowned.
Complaint was filed in the Superior Court by George Taylor against both the landowner and the district, alleging negligence and neglect upon their part and asking for $ 7,400 damages. Shortly after the filing, he died and his wife was substituted as plaintiff in the said action and thus becoming appellant herein.
From the judgment rendered on January 19, 1949, dismissing appellant's complaint against the district, ...