120 Neb. 314 | Neb. | 1930
This is an action to recover damages for injury to crops caused by seepage water, resulting from the operation of the defendant’s irrigation works, including the application of water to plaintiff’s land by lease, and other lands within the district. From a judgment on the pleadings in favor of defendant, plaintiff appeals.
This action was brought by plaintiff to recover damages to his beet crop, which he alleges was destroyed by seepage in 1924. The plaintiff was a tenant upon land within the irrigation district upon which this crop was grown. He seeks to recover his loss upon two theories exemplified in two causes of action. In his first cause of action, he alleges that the defendant, an irrigation district, “operated an irrigation canal by means of which it diverted * * * large quantities of water from the North Platte river,” and that “large quantities of water escaped and percolated from said canal through the sides and bottom thereof,” and seeped the land on which his crop was growing, thereby causing his damage.
The second cause of action, in addition to the facts stated in the first cause of action, alleges that the damage was the result of certain acts of negligence on the part of the defendant in the construction and operation of the irrigation works.
The defendant filed an answer to the petition of the plaintiff, in which, inter alia, it alleges that the irrigation system was constructed, operated and maintained by the
The plaintiff then filed a reply in which he admits that the United States constructed the irrigation works, and sets out the contract of the Northport Irrigation District with the United States, and alleges that the irrigation works were constructed by the United States of America under and by virtue of said contract and have since the construction thereof been operated under said contract.
A motion for judgment on the pleadings was based upon two grounds: (1) That the petition did not state a cause of action; (2) that the petition and reply admit facts constituting a bar to recovery.
The ruling of the court does not state the grounds upon which the motion was sustained. Numerous reasons are argued pro and con by counsel. However, it appears that the plaintiff alleges a cause of action based upon the assumption that the defendant herein constructed and operated the irrigation works; while in his reply the plaintiff admits that said canal was constructed and operated by the United States under the reclamation service. The reply, after such admission, seeks to establish a contractual liability on the part of the defendant by virtue of a contract
In the instant case, the petition, contradicted by the admission in the reply and not being aided by the new allegations therein, required the judgment of the trial court. The judgment is accordingly
Affirmed.