103 Neb. 594 | Neb. | 1919
John F. Barnum and Albert R. Kennedy are lower riparian owners on White Clay creek in Dawes county. They began separate actions against three upper riparian owners to recover for damages sustained, as alleged in plaintiffs’ petition, by the breaking of “an earth dam or .embankment” erected by defendants across the channel of White Clay creek and the consequent escape of a
The issues in both cases are identical. Pursuant to ■ agreement in the district court, they were heard together, and they will be disposed of here as one case.
Plaintiffs alleged that defendants maintained on their land “a water storage reservoir formed by placing across the channel and from bank to bank of said White Clay creek an earth dam or embankment about twenty (20) feet high, whereby a large body of the waters of said stream were held back upon defendants’ said land in storage as an ice and fish reservoir and for irrigation and other uses beneficial to defendants.” It was alleged, too. that the dam was not properly constructed so as to prevent “injury and breaking by the ordinary high waters to which said creek is subject in springtime of each year and during heavy rains,” and that in March, 1917, because of defective construction, the dam broke and plaintiffs respectively sustained the damage complained of.
The answer alleged that the plans of the dam were submitted to and approved by the state board of irrigation, and that it was constructed and installed under the supervision and direction of the board ‘ ‘ with reasonable and ordinary care and skill, so that said dam was at all times capable of resisting the waters of said stream in times of ordinary, usual and reasonably to be anticipated freshets, and such extraordinary flows of water as the defendant might reasonably have expected would flow down said creek.” It was also pleaded that the break in the dam was caused by “ an unusual and extraordinary and unprecedented freshet and high water on said White Clay creek, and its said affluent, not reasonably to be expected, anticipated and provided for by any
Before any evidence was submitted, plaintiffs moved “to withdraw from the consideration of the jury all questions in the case except the amount of damages, if any, sustained by plaintiffs.” The court ruled: “The motion will be sustained for the following reasons: That section 3444 of the Revised Statutes of 1913 provides for the construction and maintenance of storage reservoirs for irrigation or any other useful purpose, and among other things provides that £the owner or owners of such storage reservoir shall be liable for damages arising from the leakage or overflow of the water Iherefrom, or from the breaking of the embankment of such reservoir.’ In the opinion of the court this statute abrogates the common-law rule in cases of this kind, and makes the owner of the reservoir and of the dam absolutely liable for damages, and all damages resulting from the breaking of his dam. Under the pleading’s in these cases, the building and ownership of the dam is admitted, also its breaking and' destruction, and in the judgment of the court the other defenses introduced herein and set up in defendants’ answers do not constitute a defense as to the liability of the owner of the dam for all damages resulting from its breaking.”
The court in its ruling apparently overlooked the concluding part of section 3444, Rev. St. 1913, which reads:
The exception in the statute apparently recognizes a distinction that has been generally recognized as between a ‘ ‘ storage reservoir ’ ’ into which water is diverted from a natural stream and a dam that is built across a creek channel to raise water; the former being a use less usual, while the latter is a use that has been recognized and practised from time immemorial. At common law the rule is that the owner is not relieved of liability for damage that accrues to a lower riparian owner from the breaking of the bank of a storage reservoir into which water has been diverted unless such breaking is caused by the act of God or vis major. Rylands v. Fletcher, L. R. (Eng. & Irish) 3 H. L. 330; Nichols v. Marsland, L. R. (Eng.) 2 Exch. Div. 1.
It seems that the owner of a dam erected across a natural stream for the purpose of raising water for
The burden of proof is upon the plaintiff; but, when he has established the breaking of a dam and resulting injury, he has made st-prima facie case. The defendant must then show that the dam was not negligently constructed or maintained. From the nature of the case it would be difficult, if not impossible, for a plaintiff to prove the existence of a defect in a dam that caused it to break. The facts attending the construction and maintenance of a dam being peculiarly within the knowledge of the owner, he should be required to show the exercise of a degree of care commensurate with the injury that might occur in the event that the dam should break.
The building of dams in creeks for the purpose of raising water and the construction of irrigation projects for the advancement of agriculture, or to obtain power, or for other useful purposes, is a matter of increasing importance in the development of the natural resources
In view of the pleadings and the authorities, the trial court erred in refusing to permit defendant to submit proof of the allegations of his answer. The judgment is therefore reversed and the cause remanded for further proceedings not inconsistent with this opinion.
Eevebsed.