92 Neb. 245 | Neb. | 1912
Action by plaintiff, the lessee of a tract of farm land situated between what is known as Cut-off lake and the Missouri river near to and east of the city of Omaha, for damages to his growing crops and personal property caused by the flood-waters of the river alleged to have been thrown upon the premises by failure of the defendant to properly maintain a ditch leading from the lake to the river for drainage purposes, and a dam constructed therein to prevent the flood-waters of the river from flowing from that stream into the lake. On the trial in the. district court for Douglas county the plaintiff had the verdict and judgment, and the defendant lias appealed.
It appears that about the year 1898 David Talbot and E. W. Lamoreaux, who were the incorporators of the defendant company, were conducting the business of cutting and storing ice on the banks of Cut-off lake; that at times of high water in the lake their ice houses were partly submerged, and the ice stored therein was destroyed; that, to obviate that trouble, they constructed a ditch in an
1. It is strenuously argued that the evidence is not sufficient to sustain the judgment because it does not show that defendant reconstructed the dam at the outlet of the ditch in quest!on in the year 1904. In disposing of this contention, it is sufficient to say that the evideiice clearly
2. It is also contended that defendant was not the owner of the land through which the ditch was dug and on which the dam was constructed, but was a trespasser thereon, and therefore it was not liable for its failure to properly maintain the ditch and reconstruct the dam after using them for the protection of their ice houses. We find nothing in the record showing, or tending to show, that defendant was denied the right to construct the ditch and dam in question by the owner or owners of the land on which they were situated. But, on the contrary, it appears that defendant has at all times exercised the right to enter upon the premises when it became necessary to do so for the protection of its own property. If defendant could exercise such right, it necessarily assumed the duty of so exercising it as not to thereby injure the property of others. We are therefore of opinion that this contention cannot be sustained. Reams v. Clopine, 78 Neb. 166.
3. It is also contended that the right of action, if any existed for defendant’s acts, accrued Avhen the ditch was dug and the dam was first constructed in’1898, and was therefore barred by the statute of limitations. This defense Avas not pleaded, and, if it had been made an issue, could not have been maintained. The action was not one for permanent injury to the land, leased by plaintiff, but was one for damages to his growing crops and personal property, caused by the negligent reconstruction and the maintenance of the ditch and dam; and the plaintiff’s right of action accrued when his property was injured and de
4. The defendant requested the district court to instruct the jury, in substance, that there was no evidence that the David Talbot Ice Company, which constructed the ditch and dam in question, sold or transferred any right thereto or therein to the defendant; .that there ivas no evidence produced as to who were the associates of David Talbot; that they having constructed the ditch and dam in 1898, some years before the organization of the defendant company, the defendant could not be held responsible for the acts of David Talbot and his associates in digging the ditch in question.
For the reasons heretofore stated, it is apparent that the court did not err in refusing defendant’s instructions. It seems equally clear that the district court properly refused, to instruct the' jury to return a verdict for the defendant at the conclusion of all of the evidence.
5. It is contended that the court erred in giving paragraph four of the instructions upon his own motion. An examination of that instruction discloses that it fairly and clearly stated the issues presented by the pleadings, and informed the jury that, if they found the plaintiff had proved all of the allegations of his petition, enumerating and describing them, by a preponderance of the evidence, their verdict should be for the plaintiff. In this there was no error.
Finally, it appears from a careful examination of the whole record that the case was fairly tried, that the evidence is sufficient to sustain the verdict, and, no error appearing in the record, the judgment of the district court is
Affirmed.