80 Neb. 797 | Neb. | 1908
This ivas an action brought to the district court for Dawes county by appellees for an injunction and judgment for damages against appellant. It seems tliat A. J. Palmer and another in 1887 acquired title to a tract of land bisected by the Niobrara river. In 1892 and 1893 Palmer constructed an irrigation plant and water power mill upon his land, so as to receive the water from the said river to supply both his power for the mill and water
1. Upon the trial to the jury, the witness Hazard, over appellant’s objections, was permitted to answer the question: “Now, 'what causes this sand, if you know, Mr. Hazard, to back up there?” He answered: “Well, there is only one thing I could reasonably account for; that is, the dam preventing the flow of the water carrying the sand off.” The witness Poole, over appellant’s objections, was permitted to answer the question: “Now, do you know what caused this water to back up this way?” He said: “From Mr. Furman’s dam.” The questions include the very substance of the issue to be determined by the jurors, and the acceptance by them of those answers relieved the jurors from ascertaining from competent evidence the very fact at issue in the case. The testimony invaded the province of the jury, and should not have been permitted. Combs v. Agricultural Ditch Co., 17 Colo. 146; In re Estate of Cheney, 78 Neb. 274.
Over appellant’s objection, one of the appellees was permitted to answer the question: “Now, you may tell the jury what damage you have suffered by reason of this water being backed up the way you have described during these three years?” The response was: “Why, it has been considerable damage from our grinding, and in getting across back and forth during the winter, and it has ruined our water place, which is a great deal. We have lost several head of cattle; the water would rise up over the ice and then go down again, and we have lost several head of cattle, which was no small loss.” Appellant moved to strike out the answer as incompetent, irrelevant, immaterial, remote and speculative. The court sustained the motion only as to the loss of the cattle. Further- in the witness’ examination he was permitted to say appellees had suffered damage by reason of the water submerging the
2. We are satisfied from a careful reading of the entire record that the findings of the court and its judgment of injunction should be affirmed. The sole issue presented on this branch of the case is one of fact, and we have reached our conclusion independently of the findings of the jury and those of the trial court. It is not disputed that the mill was constructed and water for its use appropriated prior in time to the construction of appellant’s dam. It is also admitted and conceded all, around that appellees’ grantor surveyed and staked out the location of appellant’s dam, head gate and ditches. Appellant states: “I told him (Palmer) I would like to have him run my ditch and set the stake of my head gate,- and that I
The evidence to us seems to preponderate in favor of appellees on the issues of the license granted appellant by Palmer, the height of the dam and the effect of present conditions upon the operation of appellees’ water-wheel, and we find they were entitled to the injunction granted by the trial court.
We therefore recommend that the judgment of the lower
Fawcett, 0., concurs in the conclusion, but not in all of the reasoning.
By the Court: For the reasons stated in the foregoing opinion, the judgment of the lower court awarding appellees damages is reversed and remanded, and in all other things the judgment of said court is affirmed.
Judgment accordingly.