The opinion
*147 HOWELL, J.,
dissenting.
I agree with that portion of the majority opinion which holds that the theory of absolute liability under Rylands v. Fletcher should not be applied in this case. However, I believe that the plaintiff’s case was properly submitted to the jury on the theory of negligence and that defendant’s liability should not be predicated on intentional trespass.
The majority opinion states that intrusion by the flow of water always has been regarded as trespassory, citing Union Pacific R.R. Co. v. Vale Irrigation Dist., 253 F Supp 251, 258 (D Or 1966); Levene et ux v. City of Salem, 191 Or 182, 190 , 229 P2d 255 (1951); Laurance et al v. Tucker, 160 Or 474, 479 , 85 P2d 374 (1939).
In Union Pacific the canal was built on a steep hillside in an area known to be unstable at the time of construction, resulting in “large and destructive quantities” of water escaping from the canal.
It is my understanding that there was nothing unusual about the topography of the land or the construction of the irrigation canal in this case.
In Levene, while the court stated that the collection and emptying of water on another’s land constitutes a trespass, the court found liability on the basis of nuisance.
In Laurance, the defendant argued that she had acquired by adverse possession an easement over plaintiff’s property to drain the overflow from a septic tank. Apparently she contended also that the easement benefited the plaintiff. The court mentioned that a trespass cannot be justified by showing a benefit to the plaintiff’s land; however, the primary issue was whether defendant had acquired an easement *148 over plaintiff’s land by adverse possession, and the case was remanded for disposition of that issue.
In my opinion, the result of the majority opinion is to impose absolute liability upon a ditch company for all seepage from an irrigation ditch, whether the seepage is from natural causes or the burrowing of gophers or other animals.
I believe that the proper rule to be applied to this and other similar cases involving seepage is that the operator of the ditch is liable only on a showing of negligence. Taylor v. Farmers’ Irrigation Co., 82 Or 701 , 162 P 973 (1917), and Patterson v. Horsefly Irrigation District, 157 Or 1 , 69 P2d 282 , 70 P2d 36 (1937).