85 Neb. 347 | Neb. | 1909
This is an action to enjoin the overflow of plaintiffs’ lands. Defendant prevailed, and plaintiffs appeal.
Plaintiff Thompson owns land in the north half of the southwest quarter of section 33. Defendant owns all of the north half of said section. Plaintiff Kane owns the northeast quarter of the southeast quarter of section 32. All of this land is flat, and situated in the valley of, and close to, the Elkhorn river. Sand creek, a natural watercourse draining considerable territory, runs in a general southeast course with well-defined banks until it crosses the north line of said section 32 about midway between the northeast and northwest corners thereof. At this point the banks disappear, and the flowing water spreads out, but proceeds in a general southeast and easterly course through a shallow swale, thence northeast for a space, and thence southeast until it empties into the Elkhorn. At about the center of section 33 the banks'of the stream reappear and continue to the mouth of the creek. In the north half of section 32 there is a pond ajbout one-half mile in length and one-sixth of that distance in width. In dry seasons water ceases to flow in Sand creek, but after heavy rains flood waters overflow the land south of the swale referred to, and All said pond. It clearly appears from the evidence that water flows over the bank near the northeast shore of the pond and into the swale. After excessive rains, or coincident with high water in the Elkhorn, all
It is suggested that plaintiffs’ petition refers to a dyke and an embankment, but is silent concerning the ditch; that the north and south ditch, and not the embankment, diverts water from the Mansfield ditch; that the allegations in the petition and the evidence adduced do not correspond, and therefore plaintiffs are not entitled to a judgment in this case. A dyke in ordinary language refers to a ditch or channel dug for water as well as to a bank, mound or wall. The allegation is sufficient.
A careful consideration of the record convinces us that plaintiffs are entitled to relief. The judgment of the district court is reversed and the cause remanded, with directions to enter a judgment as prayed for in plaintiffs’ petition.
Reversed.