112 Neb. 40 | Neb. | 1924
This is an action to enjoin the construction of a drainage ditch, in Colfax county, Nebraska, which would divert the waters of Dry creek into Maple creek, on the ground that the increased flow of water in Maple creek would cause it to overflow and flood plaintiffs’ lands to their damage, with
The following pertinent facts are shown without substantial dispute: Dry creek flows into Maple creek in Colfax county, Nebraska, and for several miles above their confluence the two streams run nearly parallel. The intervening valley varies from a half mile to a mile and a half in width. Most of the land in this valley is lower than the banks of either stream. In times of freshet and high water, Dry creek overflows its banks at various places, but particularly at and above the point where the proposed drainage ditch is to tap that stream. The greater part of this overflow water never returns to the creek from which it emerges, but spreads over the valley and runs over the lands of the petitioners into another drainage ditch and ravine, and thence into Maple creek at the place where the proposed drainage ditch would enter that stream. The length of the proposed drainage ditch is approximately five miles. On at least four or five occasions within the past 40 years, both creeks have simultaneously overflowed their banks and inundated the valley to such an extent as to entirely destroy or greatly damage the crops growing on the
It is shown that Maple creek, just below the point where the drainage ditch would enter it, is frequently taxed to its full capacity; that on an average of four or five times a year the stream at that point runs bank-full, and that a small increase in the volume of its waters would cause it to overflow its banks. The volume of water in Dry creek is equal to about one-third to one-half the volume of water in Maple creek, and it clearly appears that the drainage ditch, if constructed, would so increase the flow of water in Maple creek as to cause it to overflow its banks, and that plaintiffs’ lands would be flooded several times in the course of a year, while, under present conditions, they are not flooded oftener than on an average of once in eight or ten years.
The trial court decided the case apparently upon the theory that the defendants had complied with the statutory provisions relative to the construction of such a drainage ditch; that the statute did not require notice to any persons except those whose lands would be benefited by the improvement, and that, the county board having pursued the course prescribed by the letter of the statute, injunction would not lie. The court also seems to have adopted the view that, since the overflow waters of Dry creek never return to it, they become surface waters, and that the contemplated drainage ditch would carry only surface waters; that the defendants had a right to collect these waters and accelerate their flow into Maple creek where they were wont to flow, and that the lower riparian owners along Maple creek could not complain of such acts.
We think the district court erred in assuming that the proposed drainage ditch would carry only surface waters. It will be conceded that the overflow waters .of Dry creek which spread over the valley and never re-enter that stream become surface waters. However, the evidence shows that the bottom of the drainage ditch where it would tap Dry creek is only 12 inches higher than the bottom of that stream. Dry creek at that point is 8 feet deep, and the
The law does not require the plaintiffs to bear the burden of water diverted from the natural flow of one stream and discharged into another stream, thereby causing the latter to overflow its banks and flood their lands. Pyle v. Richards, 17 Neb. 180; Kane v. Bowden, 85 Neb. 347; Nelson v. Wirthele, 88 Neb. 595; Keifer v. Shambaugh, 99 Neb. 709; Keifer v. Stanley, 111 Neb. 822; Roe v. Howard County, 75 Neb. 448. In the latter case it is held: “Where water, be it surface water, the result of rain or snow, or the water of springs, flows in a well-defined course, be it ditch or swale or draw in its primitive condition, and seeks its discharge in a neighboring stream, its flow cannot be arrested or interfered with by a landowner to the injury of the neighboring proprietors, and what a private proprietor may not do neither can the public authorities, except in the exercise of the right of eminent domain.”
Under this authority the defendants could not lawfully construct a drainage ditch and divert the waters that naturally flow within the banks of Dry creek and discharge them into Maple creek and thereby cause the latter to overflow its banks and flood the plaintiffs’ lands to their injury, except in the exercise of the right of eminent domain. De
This court has held that in establishing a drainage ditch pursuant to the provisions of article I, ch. 89, Comp. St. 1899, which now appears as article I, ch. 17, Comp. St. 1922, among the jurisdictional steps required to be observed is “that notice, as provided by statute, to persons on whose lands the cost is to be apportioned, and the owners whose lands are to be taken or damaged, shall be given.” Dodge County v. Acom, 61 Neb. 376; Darst v. Griffin, 31 Neb. 668; Morris v. Washington County, 72 Neb. 174.
It follows that the judgment of the district court should be and is reversed, and the defendants are enjoined from proceeding with the construction of the proposed drainage ditch until a time is fixed for the hearing of plaintiffs’ claims for damages, and they are given due notice of such hearing, so that their claims may be heard and determined.
Reversed.
Note — See Drains, 19 C. J. p. 683, sec. 153.