99 Neb. 843 | Neb. | 1916
The defendant drainage district constructed a channel across a part of the lands of the plaintiff to carry the water of Oak creek in a more direct line. The plaintiff began this action in the district court for Lancaster county to recover damages to her land caused, as she alleged, by the negligence of the defendant in the construction of the channel and in the construction of a bridge over the channel. The trial in the district court resulted in a verdict and judgment in favor of the plaintiff, and the defendant has appealed.
The first important, and perhaps controlling, contention of the defendant is that a drainage district is a public corporation, and is not liable to an action for negligence. Chapter 19, Eev. St. 1913, is devoted to drains and drainage. It contains seven different articles: “I. Drainage by county authorities. II. Drainage by incorporated companies. III. Drainage for agriculture or sanitary purposes by individual landowners. IY. Drainage districts organized by proceedings in district court. Y. Drainage districts organized by vote of landowners. VI. Natural lakes. VII. Sanitary drainage districts in cities.” The pleadings in this case do not plainly show under which of these several articles this district is organized. The case apparently was tried by all parties on the theory that it was immaterial under which one of the several classes of drainage districts the defendant belonged. At the close of the trial the jury were excused, and the defendant offered evidence tending to show that the defendant district was organized under the act of 1907, Laws 1907, ch. 153, as amended. This evidence was objected to by the plaintiff on the ground that it was immaterial, “waiving, however, the production of the county clerk to prove the original incorporation,” but as the evidence is, we think, material and no other ground of objection was made, it may be considered that the defendant was organized under that act, which is árticle V, ch. 19, Eev. St. 1913 — “Drainage dis
One of tbe earlier cases bolding that a county is not liable for damages caused by tbe negligence of its officers is Wood v. Colfax ad County, 10 Neb. 552, in wbicb it was held: “A county is not liable in damages at common law, or under tbe Revised Statutes of 1866, for injuries caused by tbe breaking down of a public bridge, wbicb was caused by tbe negligence of tbe county commissioners.” In tbe opinion by Chief Justice Maxwell it was said: “If tbe negligence complained of in tbe petition and consequent injury to tbe plaintiff bad been occasioned by a natural person or a municipal corporation proper, tbe right to recover would be unquestioned. But are counties municipal corporations? Municipal corporations may be defined to be bodies politic and corporate, created by law for tbe purpose, primarily, of regulating and administering tbe local and internal affairs of towns, cities and villages. 1 Dillon, Municipal Corporations (3d ed.) sec. 9. Such corporations are created principally for tbe benefit and convenience of tbe inhabitants composing tbe corporation, although they are important auxiliaries of tbe state in tbe administration of tbe law. Tbe charters conferring powers, prescribing duties, and imposing burdens must in some way receive tbe assent of those to be governed- by their provisions, and they thus accept tbe benefits and agree to perform tbe duties imposed upon them. * * * A county is a mere local subdivision of tbe state, created by it without tbe request or consent of tbe people residing therein.”
Drainage districts organized by vote of landowners under article Y are voluntary corporations principally for tbe benefit of tbe owners of tbe land lying in tbe district incorporated. In determining whether such districts shall be organized, any person may cast one vote “for each acre of land or fraction thereof .and each platted lot wbicb be may own or have easement in.” Rev. St. 1913, sec. 1872. A majority of tbe votes is necessary for tbe formation of the district. Tbe defendant cites Heffner v. Cass and Mor
A brief has been filed by a “friend of the court” in which it is vigorously insisted that such damages as are here alleged could be recovered only in the original condemnation proceedings in which the drainage district obtained the right of way. The brief says: “This was not a question of negligence in construction, but a question of deliberate plan. The district therefore actually took for drainage purposes the right of way involved in the ditch and actually took the lake for the purpose of constituting a channel of the new creek and for the purpose of furnishing a spillway temporarily until the outlet drained the water away. This was a part of the plans.” The position would be more intelligible if it was not also contended that a drainage district is not liable for negligence. We do not see why the same rule that is applied to other corporations which exercise the right of eminent domain is not applicable here. Condemnation .is not allowed, except so far as it is necessary for the proper construction and use of the work. If the drainage district had attempted to condemn this lake as a “spillway,” and had definitely disclosed that purpose, and the proposed manner of constructing and using the same, and, upon objection by the parties affected, had made it appear 'to be a necessary and proper construction of the improvement, the district would be charged in the condemnation proceedings with all damages caused by the proper construction of the work. Negligence would not be presumed and anticipated. Persons injured by a necessary and proper construction of the work must be paid their
It is alleged that the defendant “constructed a dam in the regular channel, and a ditch or artificial channel across said bend, designed to divert the flow of water from its natural channel in Oak creek into the artificial channel, as aforesaid. * * * That in the construction of said artificial channel the defendant was guilty of negligence in this, to wit, in excavating a channel only ten (10) feet in width at the bottom instead of twenty (20) feet in width, and which channel was insufficient in width and depth to retain and imprison in its banks the flood waters that ordinarily occur and which theretofore flowed in the natural channel of Oak creek. * * * The defendant drainage district was also guilty of negligence in constructing a pile bridge across the said artificial channel of Oak creek where it crosses the public road about 300 feet southeast of the lake bed, through which said channel runs. That, instead of constructing a single-span bridge with stone abutments on each side of said channel, the said district constructed a three-span bridge, with piles driven thereunder for support of said spans in such manner and so closely together that the said piling so obstructed the channel that trees and other debris which flowed in said channel during the flood of May, 1913, formed a barrier across the channel, thereby raising the height of water in the channel, backing it up to the opening in the dike at the lake bed, causing it to spread out upon plaintiff’s land, and thereby augmenting and increasing the flooding thereof in the month of May, 1913, as aforesaid.”
There is no attempt on the part of defendant to justify these acts as necessary in the proper construction of the work. The petition contains unnecessary, and perhaps improper, allegations; but, considering the manner of trying the case by both parties, the defendant is not in a position
. ' The defendant filed a motion to require the plaintiff to separately state and number her causes of action, and to strike out certain allegations of the petition. The court sustained the motion to strike out parts of the petition, but overruled the motion to.require plaintiff to separately state and number her causes of action. The defendant complains of this refusal of the court. The petition alleges somewhat in detail damages alleged to have been caused in the months of March and April, 1912, and then alleges “that, inconsequence of the negligence of the defendant, as aforesaid, the plaintiff’s land to the extent of twenty-five (25) acres was subjected to a second overflow in the month of May, 1912,- and a third overflow in May, 1913, and a fourth flood in March, 1914, and there was deposited thereon a large additional amount of debris, together with a large quantity of water, which remained thereon for several days in consequence of defendant’s negligence in permitting such flood waters to escape from such artificial channel.” This latter allegation hardly amounts to an allegation of a separate cause of action. It alleges no damages. • It would no doubt have been stricken out as irrelevant if motion had been made for that relief. This is also true of other similar allegations.
“Where by the negligent construction of a railway embankment and ditches, surface water is discharged upon the land of an adjoining proprietor and his crops thereby injured, such party’s cause of action accrues at the date of the injury, and not at the date of the construction of the embankment and ditches. * * *, The measure of damages for the destruction of a growirig crop is the value thereof in the condition in which it exists at the time of its destruction.” Morse v. Chicago, B. & Q. R. Co., 81 Neb. 745. These principles apply equally to injuries to.the land itself.
The court limited plaintiff’s recovery to damages caused to the land by the several floodings thereof in different
When the evidence was offered by plaintiff, the witness was asked: “Now, give the fair and reasonable market value of this land before it was flooded in 1912, and after the last flood of March, 1914.” The defendant objected “because it does not exclude from the witness’ consideration all of the elements that entered into the award made by the jury of condemnation.” No objection was made upon the ground now insisted upon. The witness answered the question, showing á difference in value of $9 or $10 an acre, and added: “There is a depreciation, I would say, from $7 to $8 (an acre) in the value of the land.” If this depreciation was not caused by the negligence complained of, the defendant might show other cause,.if any. After this evidence was admitted without objection, both parties considering at the time that this was the proper method of proving the injury to the land, and defendant objecting only upon the ground that the witness was not duly considering the award upon condemnation, the defendant ought not now to have a reversal because the question of damages was submitted to the jury as it was proved. There was no other basis in the evidence upon which the measure of damages could be submitted. The defendant ought not to defeat the case by such methods.
Complaint is made of the conduct of the jury in viewing the premises under the order of the court. The defendant’s attorney accompanied the jury, and knew at the time of the matter of which he is now complaining, but made no objection until after the verdict- There is no evidence that the verdict was affected by the irregularity complained of, and for these reasons this objection must be overruled.
The judgment of the district court is
Affirmed.