No. 15,227 | Neb. | Oct 22, 1908
Lead Opinion
The defendants Glover own the north half of section 35 and the south half of section 26, in town 18, range 18,
Elaborate briefs have been furnished and many authorities cited for our consideration. We shall not attempt to review them, as this case is clearly ruled by Aldritt v. Fleischauer, 74 Neb. 66" court="Neb." date_filed="1905-06-08" href="https://app.midpage.ai/document/aldritt-v-fleischauer-6656280?utm_source=webapp" opinion_id="6656280">74 Neb. 66, and Todd v. York County, 72 Neb. 207" court="Neb." date_filed="1904-06-30" href="https://app.midpage.ai/document/todd-v-york-county-6655896?utm_source=webapp" opinion_id="6655896">72 Neb. 207. The only possible distinction between Aldritt v. Fleischauer and the instant case is that in the former, the draw seemed to extend, with well-defined banks, to Turkey creek, whereas in the case at bar the water from the draw or canyon must pass over a few rods of bottom land to reach Waggoner creek; but in each case the draw is the provision made by nature for the drainage of the nearby lands, and in each case the draw furnished the nearest and most natural way for the drainage of the pond. The case can be disposed of without reference to sections 5543, 5544, Ann. St. 1907, which plaintiff’s counsel insist are unconstitutional. The fact that defendants were turning the water into a channel on Mrs. Amos’ land is immaterial, when we understand that the ditch was for the mutual benefit of Mrs. Amos and defendants, and that the effect thereof was to drain her land, as well as that of defendants.
The judgment of the trial court dismissing plaintiff’s petition was right, and we recommend that it be affirmed.
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is
Affirmed.
Concurrence Opinion
concurring.
The opinion of the commissioner meets with my approval. I do not understand it in any way to be a departure from the common law rule that a party has no right to collect surface water in a ditch or drain, and discharge it or permit it to flow onto the land of another without the latter’s consent, as we first held in Davis v. Londgreen, 8 Neb. 43, and to which we have adhered in an unbroken line of decisions down to and including Town v. Missouri P. R. Co., 50 Neb. 768" court="Neb." date_filed="1897-03-03" href="https://app.midpage.ai/document/town-v-missouri-pacific-railway-co-6650966?utm_source=webapp" opinion_id="6650966">50 Neb. 768. There .can be no doubt but that we are firmly committed to this rule, and it is not our purpose to depart from it. My concurrence is based on the fact that the evidence in this case takes it out of the common law rule, and brings it clearly within the rule announced in Todd v. York County, 72 Neb. 207" court="Neb." date_filed="1904-06-30" href="https://app.midpage.ai/document/todd-v-york-county-6655896?utm_source=webapp" opinion_id="6655896">72 Neb. 207, and Aldritt v. Fleischauer, 74 Neb. 66. I am of opinion that the evidence in this case fairly shows that the waterway, into which the defendant proposes to drain the pond situated on his land, when it reaches the plaintiff’s premises, does not lose its distinctive character as a waterway.. It is true that it widens out somewhat, and for a short distance allows the water to spread and cover more surface than it does where it is turned into the ravine. Still the flow at the place in question is unobstructed, and is continuous until it reaches Waggoner creek.
For this reason, I concur in the conclusion reached by the commissioner.
Dissenting Opinion
I dissent. I think the facts in the case bring it within the rule of Davis v. Londgreen, and that the doctrine of Todd v. York County and Aldritt v. Fleischauer is not applicable.