296 N.W. 439 | Neb. | 1941
This is an action to recover damages for loss of crops
The record shows that plaintiff was the owner of 200 acres of land, six miles north of Columbus, in Platte county, which he used for many years in farming, stock-raising and dairying. The defendant is a public power district, organized under chapter 86, Laws 1933, and amendments thereto. At a point approximately one mile south of plaintiff’s land, defendant constructed a large reservoir, known as Lake Babcock, to impound large quantities of water from the Loup river to furnish water power for the production of electrical energy. On or about August 1, 1937, sufficient waters had been impounded to cause plaintiff’s land to become seeped and water-logged by waters escaping from defendant’s reservoir.
The trial court, in submitting the case to the jury, instructed that recovery could be had, if sustained by sufficient evidence, for the loss of seven acres of a fourth cutting of alfalfa in 1937 in the amount of $224, loss of crops destroyed in 1938 in the amount of $3,828, for damage to poultry and cow-yards, $1,000, for damage to basement of residence, necessitating repeated pumpings, in the sum of $1,000, for damage to driveway leading to residence, $240, for damage to pasture, cornstalks and stubble land, $240, for total loss of certain lands and damage to balance of the farm in the amount of $46,000. The record shows that a recovery in some amount was had on each of the seven items listed, the total verdict amounting- to the sum of $21,356. It was prejudicial error to thus submit the case to the jury.
The measure of damages for the permanent taking of land by seepage is the difference, if any, between the reasonable market value of the land taken, including improvements theréon before the damage from seepage, if any, occurred, and the reasonable market value of such land, including improvements thereon, after the damage from seepage, if any, occurred. The evidence of damage to the
In considering the law in reference to damage from seepage, our statute is in line with the English rule established in the case of Fletcher v. Rylands (1866) L. R. 1 Exch. 265, 4 Hurlst. & C. 263, 1 Eng. Rui. Cas. 235. This case was in the various courts for many years, and in the long decision many judges gave their opinions upon various phases of it, and from the judgment of the Exchequer Chamber a proceeding in error was brought to the House of Lords, and the opinion of the Lord Chancellor and several others is set out in full, and the rule finally approved reads as follows: “The person who for his own purposes brings on his land, and collects and keeps there, anything likely to do mischief if it escapes, is prima facie answerable, if it escapes, for all the damage which is the natural consequence.” See 38 A. L. R. 1244, Ann.
However, the Nebraska statute makes the liability for damages from seepage absolute.
In the recent case of Applegate v. Platte Valley Public Power and Irrigation District, 136 Neb. 280, 285 N. W. 585, a judgment for separate crop losses in addition to permanent damage to the land was sustained. An examination of the Applegate case discloses that it was also a seepage case, in which the plaintiff for a first cause of action sued to recover permanent damages to his lands, and the jury returned a verdict of $6,500 on this cause of action. The second cause of action was for damages for loss of alfalfa during 1936 and 1937, and the jury returned a verdict of $600 for these crop losses, and the judgment entered upon said verdict was affirmed by this court.
It will be noted, however, that in the Applegate case the first cause of action was for permanent damages to lands owned in fee by plaintiff, while the second cause of action for two years of crop damage was on land of which he had possession as a tenant only. There is also to be considered that the crop damage in 1937 was caused by a major break in the canal leading to the reservoir, instead of by seepage.
We have examined all the evidence in the record pertaining to the difference in the reasonable market value of the farm before and after the seepage. The jury fixed such damage at $19,000. The trial court limited to seven the number of witnesses which each side could call as to the damage to the farm as a whole. The plaintiff called to the stand as witnesses his son and his brother-in-law, who testified that the farm was worth $275 an acre before the seepage occurred. Two neighbors made it $265 an acre, three made it $250 an acre, and one said $230. Some of
It is charged by the defendant that a recovery of $19,000 for the land damage, or an average of $190 for the 100 acres south of the creek, or $95 an acre for the whole farm, half of which is claimed to be outside of the seepage area, is so excessive in view of the testimony that it must have been arrived at through some influence brought to bear upon the jury, or by passion and prejudice, and that it is certainly not sustained by the evidence.
There was reputable evidence on the part of defendant that, with an expenditure of a little over $6,000 for tiling the farm and waterproofing the basement, the farm would then raise better crops than before.
We are obliged to hold that the evidence will not fairly sustain a verdict of $19,000 in addition to the specific items of damage allowed totaling $2,356. Whether the jury were misled by the erroneous method of submitting the case, or whether such excessive verdict was the result of passion and prejudice, we, of course, are unable to say.
It is the law of this state that the power of setting aside a verdict on the ground that it is excessive is one to be used sparingly, and that a verdict will not be set aside simply because the appellate court might have decided differently on the same facts. Watson v. Miller, 131 Neb. 74, 267 N. W. 230.
“A verdict so clearly excessive as to induce the belief on the part of the reviewing court that it must have been found through passion, prejudice, mistake, or some means not apparent in the record, will be set aside and a new’ trial awarded.” Collins v. Hughes & Riddle, 134 Neb. 380, 278 N. W. 888. See, also, Schulz v. Central Nebraska Public
Defendant devotes a considerable part of the reply brief to the alleged attempt of the plaintiff to improperly influence the jury, and insists that a new trial should be granted on that ground. We do not think this charge was established by the evidence, for the record does not disclose that any improper influence was, in fact, brought to bear upon any juror. There was no error, therefore, in overruling that part of the motion for a new trial based upon the claim that the jury were improperly influenced.
For the reasons set out in this opinion, the judgment is reversed and the cause remanded for a new trial.
reversed.