131 Neb. 35 | Neb. | 1936
The plaintiffs claim damages resulting to their land from overflow claimed to be caused by defendant’s erection •of a dam in the Frenchman river. Defendant appeals from a verdict and judgment for plaintiffs.
The land involved is located about one-half mile from the town of Palisade, Nebraska. During the irrigation season the water from the river is diverted to the Culbertson irrigation canal. This canal or ditch has existed for 40 years. It lies north of the river in distances from the intake varying up to one-half mile. Following the meanderings of the river channel from its diversion point, it traverses about two miles when it again nears the ditch. At this latter point the ditch is about ten feet above the present water level of the river. It is near here where the defendant’s river dam was erected. The ditch has a fall of approximately one and a half feet in one mile. The fall in the river’s course to the dam is approximately four feet from a point about one mile above. The land of the plaintiffs lies immediately north of this latter point. The river passes through plaintiffs’ land; the ditch bounds the land on the north. A waste-gate and' spillway from the ditch, about one-fourth mile above the point mentioned, admits water on occasion through a former stream-bed to the Frenchman river. This waste-gate is about 32 feet wide. From November to about May all the water from the ditch is wasted through this source, flowing down the river through plaintiffs’ land, through defendant’s land, and eventually over defendant’s dam. The dam is a substantial concrete structure. Its height-by measurement of one witness is slightly over five feet; by the estimate of others as much as eight feet. Its
Plaintiffs claim that, by the erection of the dam, backwater overflows part of their land, especially in the winter season, rendering the same waterlogged and increasingly unfit for agricultural and hog-raising purposes; that the flow of the stream is impeded, permitting its freezing in winter, thus unfitting it for watering uses. The defendant contends that the dam raises the water level to no greater height than normal; that 1,700 yards of gravel were removed in 1924 from the river bed in both plaintiffs’ and defendant’s land, and that by such removal and subsequent erosion during the next four years the river bed was lowered four to six feet; that the water level in the river now is no higher than its normal level in 1924. The dam was erected in 1930.
The defendant asserts, as a matter of law, his right, under his theory of the evidence, to restore the original water level, and though citing no cases to sustain this assumption, the application of the proposition is not challenged in the 'brief of plaintiffs. See Johnk v. Union P. R. Co., 99 Neb. 763, 157 N. W. 918, and converse of the proposition in Mitchell Drainage District v. Farmers Irrigation District, 127 Neb. 484, 256 N. W. 15. Assuming, then, under the conditions, the absolute right of defendant to erect a dam so to raise the water level, the question of fact for solution is whether the water level was raised beyond what was the normal flow before the claimed erosion. The latter covers a period between 1924 and 1928.
The evidence is definitely in conflict. On plaintiffs’ behalf some removal of gravel is admitted, but the claimed effect of lowering the water level and the subsequent claimed four to six foot erosion of the river bed is denied.
Formidable evidence of scientific measurements of various present heights was submitted. By these it is shown that the water- level of the river at a point on the southernmost side of plaintiffs’ land is 3.91 feet above the top of the dam, in the stream at the waste-gate 4.5 feet; and the land levels- are at the first point mentioned 6.4 feet above the top of the dam and 4.5 feet at the second point. Other points are also selected showing height of both river and land above top level of the dam, from which should follow an inference of impossibility that the damming of the water could have had any effect on plaintiffs’ land. At the time these measurements were taken two-tenths of a foot of water was passing oyer the dam. At that time plaintiffs assert the ditch carried 3.2 feet head of water. Upon release of this flood the spread of water would depend upon the volume at the point of release and the rapidity of its escape. Necessarily, the height of the im-.
Test holes were dug in various parts of the land in which the water rose to heights beyond the level of the dam top. The water in the river upstream was also higher. It is claimed that the river was retarded and its volume increased by the dam; that the river was so affected through plaintiffs’ land. Of course, the whole stream would to some extent be affected and the water-table would be raised; so it does not follow that, because the test holes showed an elevation of water greater than the top of the dam, the damming of the water was not the cause of the water in the test holes. In some measurements the test holes showed water higher than the adjacent stream. Without a showing of the directly adjacent soil, this would not prove conclusively that the water in the test holes did not come from the stream; its source may have been a higher point in the stream, a soil through which the water could more easily percolate. Again, if the water-table were raised by elevating the stream, the plaintiffs would be entitled, under their pleadings, to recover for loss thus suffered. Pierce Mill Co. v. Koltermann, 26 Neb. 722, 42 N. W. 877. An upper riparian owner is not required to bear any burden which a lower proprietor creates by the erection of a dam. Flader v. Central Realty & Investment Co., 114 Neb. 161, 266 N. W. 965. Moreover, if the jury found the elevation of the river had not been
All the foregoing covers the defendant’s first three assignments of error relating to the sufficiency of the evidence and its effect. on instruction No. 8 given by the court.
Objection is made to the admission in evidence of the loss of hogs by drowning. By substituting the word “hogs” for “cattle” in the following, we find a satisfactory answer to this objection:
“The plaintiff, in testifying as to how the construction of the dam affected his land by raising the water above the natural flow, stated that it increased the danger of stock drowning therein, and that he had already lost some cattle in that, manner. This was objected to, and on the ruling error is sought to be predicated. The statement was only made as an illustration of the damage occasioned by the rise of water in the stream because of the construction of the dam. The rule for measuring the damage sustained was corréetly given the jury in the instructions of the court, which was stated to be the difference in the fair market value of the land immediately before and after the erection of the mill-dam. The jury could not have been misled by the testimony objected to, and none of the rights of the defendant were prejudiced thereby.” Jerabek v. Kennedy, 61 Neb. 349, 85 N. W. 279.
The fourth and last assignment of error relates to the court’s giving an instruction on the measure of damages. Although plaintiffs’ counsel contends that the case was tried on the theory of temporary damages,- and defendant’s counsel is uncertain whether the pleadings and evidence
If the structure is regarded as permanent, the evidence is insufficient to sustain the verdict because the value of the land after construction of the dam is not shown; if it is regarded as a temporary obstruction, the measure of recovery for permanent loss submitted in- this instruction is incorrect. In view of the foregoing, the judgment is reversed and the cause remanded.
Reversed.