10 N.W.2d 337 | Neb. | 1943
This is an action by Minna Jorgenson, plaintiff and appellant, against Frank M.-Stephens, defendant and appellee. The action is by plaintiff for injunction against defendant to prevent the discharge of surface water and water from eaves of buildings from premises of the defendant upon residence property of plaintiff, and for damages.
The action was tried in the district court for Lancaster county, Nebraska. The findings and decree were for the defendant. The plaintiff has appealed.
The real estate involved in this controversy is block 8, Sheridan Place, an addition to Lincoln, Lancaster county, Nebraska. The block is bounded by Lake street on the south, Twenty-seventh street on the east, Park street on the north and Sheridan boulevard on the west. Plaintiff’s property is lot 2 which is a 50-foot lot facing Park street and extending southward to approximately the east and west ■ center line of the block. It is one lot Or 50 feet west from the east line of the block. ‘ The real estate of the defendant
Sheridan boulevard extends from about Twenty-fifth and South streets in a southeasterly direction and intersects Lake street slightly more than 300 feet west of Twenty-seventh street and from there continues on southeasterly and 'intersects Twenty-seventh street, which street extends north and south. In the vicinity involved here the boulevard follows a ridge. The slope on one side descends to the southwest and on the other to the northeast. The properties here are on the northeastern slope with the property of the plaintiff directly below that of the defendant. It will be observed that in the natural state the dispersion or flow of surface water was from the land now owned by defendant onto that of plaintiff and other adjoining land.
Since Lake street was graded and paved it would appear that no surface water from the land south of Lake street comes onto any of these properties. It appears further that only water falling upon defendant’s property may flow onto that of plaintiff.
From this physical description of the terrain and the structures we proceed to the ground or grounds upon which plaintiff bases her right to injunctive relief and to damages.
It is the claim of plaintiff that prior to the construction of the buildings on defendant’s property the lands were leveled by removal of dirt from the south part and deposit thereof on the north part, which created a sharp drop at the north line; that the apartments were so constructed that the rain water from the west side of the east apartment building, the north side of the south apartment building and the south garage building were collected on defend
The defendant generally denied the claims of plaintiff.
There are certain facts that are clearly established. One is that a lesser quantity of surface water is permitted to flow from defendant’s property onto property adjoining on the north than would so flow if there had been no grading and no construction of buildings. No water dripped from the north garage onto plaintiff’s property. All or most of the rain falling south of the center of the south apartment and east of the center of the east apartment building flows either into Lake or Twenty-seventh street and the property to the north is relieved from this burden. All of the remaining water, except that coming onto the northwest corner and that falling on the north garage which flows off, passes through a space between the east apartment building and the north garage of the width of 8.8 feet.
For the purposes of this case the width of flow is of no particular consequence. It is true that in the petition damage and injury is in part predicated upon collection and concentration of flow but careful examination discloses that from the standpoint of evidence reference is made only to volume andi not to narrowed' or concentrated flow.
It is further clear that plaintiff has and will continue to suffer inconvenience from -the flow of water onto her property and that her property has been damaged. This, however, is not a matter for first consideration. The matter for first consideration is the right of the defendant with regard to the control, disposition and dispersion of his surface water.
It appears proper to interpolate here that the field for
With regard to surface water it has long been the rule that one may protect his land from surface water even to .the damage of his neighbor and may only be held responsible in case of negligence. Morrissey v. Chicago, B. & Q, R. Co., 38 Neb. 406, 56 N. W. 946; Anheuser-Busch Brewing Ass’n v. Peterson, 41 Neb. 897, 60 N. W. 373; Jacobson v. Van Boening, 48 Neb. 80, 66 N. W. 993. Also it has long been the rule that the proprietor of lands may, by proper use and improvement thereon, deflect surface water; and will not be liable for consequent damage to his neighbor in the absence of negligence. Morrissey v. Chicago, B. & Q. R. Co., swpra; Churchill v. Beethe, 48 Neb. 87, 66 N. W. 992. There has been no departure in the later cases. See Todd v. York County, 72 Neb. 207, 100 N. W. 299; Aldritt v. Fleischauer, 74 Neb. 66, 103 N. W. 1084; Arthur v. Glover, 82 Neb. 528, 118 N. W. 111.
It has also been held that a landowner, in the absence of negligence, may, in the interest of good husbandry, accelerate surface water in the natural course of drainage without liability to the lower proprietor. Todd v. York County, supra; Perry v. Clark, 89 Neb. 812, 132 N. W. 388; Arthur v. Glover, supra; Aldritt v. Fleischauer, supra; Steiner v. Steiner, 97 Neb. 449, 150 N. W. 205.
The latest expression of this court on the question of the servitude of a lower landowner to an upper owner with regard to surface waters is found in Leaders v. Sarpy County, 134 Neb. 817, 279 N. W. 809. In that case this court quoted with approval the following from Heier v. Krull, 160 Cal. 441, 117 Pac. 530: “Every landowner must bear the burden of receiving upon his land the surface water naturally falling upon land above it and naturally flowing to it therefrom, and he has the corresponding right to have the surface water naturally falling upon his land or naturally coming upon it, flow freely therefrom upon the lower land adjoining, as it would flow under natural conditions.”
One important exception to the rule is: “The right under the general rule to control surface waters must be so exercised by any person as not to unnecessarily or negligently cause injury to the rights and property of others.” Town v. Missouri P. R. Co., supra.
We think from an examination of the entire opinion in Leaders v. Sarpy County, supra, the court intended only to say that the upper owner of land has the right, without interference, to have the flow of surface water follow along a well-defined watercourse from his land. We do not think there was an intention to take away the right of a lower owner to, reasonably and without negligence, protect his land from surface water not flowing in a well-defined channel or watercourse but which by natural forces simply followed the general decline of the land.
Within the meaning of the decisions of this court the evidence fails to disclose that the defendant has been negligent in the dispersion of his surface waters upon the land of the plaintiff or that he has acted unreasonably. In the absence of such a showing no finding of liability may be made.
T'o require defendant, as plaintiff prays, to provide an unnatural and artificial outlet for his surface waters which
Under the record here the plaintiff must be left to her own resources to, reasonably and without negligence, protect her property from the surface water coming from the property of the defendant, if she would have protection therefrom.
The decree of the district court is affirmed.
Affirmed.