278 N.W. 483 | Neb. | 1938
This is an appeal from the district court for Hayes county wherein a jury returned a verdict in the sum of $4,000 in favor of the plaintiffs for damages resulting to their land from an overflow alleged to have been caused by the erection of a dam by defendants. The court required a remittitur of- $1,000 which was filed. The defendants have appealed. -
The pleadings of the parties admit the ownership of the land in question in the respective parties, and the erection of the dam by the defendants. Plaintiffs’ petition alleges, in substance, damages to the land caused by the erection of the dam in question by defendants, causing overflow on
The evidence discloses that plaintiff Joseph C. Meister has lived in Hayes county since 1886 and has owned the land in question since 1915, the land being located about one-half mile north of the town of Palisade, Nebraska, described as the northwest quarter of section 31, township 5 north, range 33 west of the 6th P. M.; that highway 25, running from Palisade to highway 17, extends along the east side of this quarter-section on the half-section line; that the house is located 20 rods west of the road; that there are barns, sheds and other improvements near the house; that plaintiffs are engaged in the business of stock-raising and farming; that the land directly east, being the northeast quarter of section 31, is also owned by the plaintiffs.
The Frenchman river enters the land of plaintiffs in the northwest corner of the northwest quarter of said section 31, and adjacent thereto is the Culbertson irrigation ditch, which follows the Frenchman river. The river and irrigation ditch run across the north side of the two quarter-sections in question. The ditch is 40 feet in width, and its purpose is to divert the water from the Frenchman river at the northwest corner of the northwest quarter. It has
From the time that plaintiffs acquired the land until the fall of 1930, the old river channel as it ran through the hog pasture was a narrow, low stream, 8 to 18 inches deep, 3 to 6 feet wide, which never froze up in the winter and was used for watering stock. Along this stream grew various kinds of shrubbery and trees, cotton,- willow, and plum thickets. East of the hog pasture is an alfalfa patch, consisting of 30 to 35 acres, in the southeast corner, bounded on the west by the river and the hog pasture, on the north by the Culbertson ditch, on the east and south by the half-section line. These two portions of land are the tracts involved in this action. The foregoing constitutes plaintiff Joseph C. Meister’s description, which is fairly accurate with the exception of proximate distances that may vary some from other descriptions and the maps in evidence. The dam is located on the northeast corner of the south half of section 32. This dam is of concrete structure .and extends from bank to bank of the Frenchman river, has concrete wing walls which extend upstream and downstream from the dam to converge the stream to a width of approximately 37 feet, has a concrete floor about one foot thick and extends downstream 20 feet or more. The footings are sunk in hard clay or bed rock. The dam rises to a crest of 5 feet 1 inch above the surface of the bed rock. The flow of the Frenchman river between the waste-gate and the dam passes- over the barrier through all the year.
There are different estimates given in the testimony as
The testimony of the plaintiffs was to the effect that the damage started after the erection of the dam in 1930, when the water raised and spread over the bottom, which resulted in freezing up the small stream of water, shutting it off for live stock purposes, and compelling plaintiffs to-cut holes in the ice to obtain water for live stock. Complaint was made to Mr. Krotter and his son Chauncey, who informed them that the ice would melt when the weather warmed up, and in the spring, when the ice did melt, the water spread over the bottom until it became muck and mire and continued so until late in the spring, or until water was taken out of the river and converted into the ditch, which is' usually in April, thus leaving the hog pasture and feed lots unfit for use. The testimony further disclosed that some of the trees and shrubbery along the banks of the stream died, and that the land which had been planted to alfalfa grew crops to a height of only 6 to 8 inches. The evidence disclosed certain alkali substances in the soil of all of the land in that vicinity, belonging both to plaintiffs and defendants, and the value of the land in question immediately before and immediately after the construction of the dam.
Appellants contend that the petition of the plaintiffs is insufficient to warrant the court ■ in presenting to ■ the jury the measure of damages as'presented, for the reason that no allegation in the petition states properly the measure- of ‘damages, 'and' that' said• petition is confined, if- at
Appellants suggest that-the reason for the lack of crops may be due to various causes, one of which is a dam erected by the plaintiffs on their land sufficient to span the Frenchman river, this dam being located in the northwest quarter of section 31, constructed in 1926, rebuilt in 1932, and washed out by a flood in 1935. It was used to impound water to enable plaintiffs to obtain ice. The dam was not permanent and not high, being about 3 feet in height. It is suggested that the flood of 1935 may have caused the condition that existed on plaintiffs’ land. We scarcely believe that this position is correct, in view of the evidence.
The evidence discloses that a certain amount of gravel was taken from the bed of the Frenchman river on plaintiffs’ land; that this did deepen the channel of the river, and that the reason for the construction of the dam by defendant Fred Krotter was to restore the water in the channel to its former level, to stop erosion and to benefit the lands generally. The evidence on erosion does not sustain the claim of erosion. Alluvial deposits of sand and gravel from the ditch were a constant occurrence and cast doubt on the claimed erosion.
Appellants suggest that the condition of the soil on plaintiffs’ land, shown by their experts to contain alkali substances, was analogous to the condition of the soil on
We now consider appellants’ first assignment of error: That the verdict is contrary to the evidence, not sustained thereby and contrary to law, and that the plaintiffs are obligated to prove, by a preponderance of the evidence, that the obstruction of which they complain caused the damages sustained, citing Harris v. Lincoln & N. W. R. Co., 91 Neb. 755, 137 N. W. 865, and other cases. On the burden of proof, there can be no doubt of the law. We believe the evidence in this case is in conflict. For years prior to the time of the construction of defendants’ dam, there had been no damage to the land, the alfalfa field or hog pasture. The small stream did not freeze up and was valuable for the purpose of watering live stock. The trees were alive along the bank of the stream, and the testimony of Jasper Ray, a ditch rider from 1926 until he left after the construction of defendants’ dam, substantiates the foregoing facts. He told- of the difficulty that he had at the head-gate in controlling the water, and of his request to Fred Krotter in that regard; also of his difficulty in controlling the water at the head-gate after the erection of defendants’ dam, compared with conditions before its erection. The natural slope and drainage in this area are from the northwest to the southeast. Jasper Ray testified that the water level in the' sluice-way rose steadily until the water- “got deeper on the floor Of the' head-gate *• * * perfectly level.”
The appellants contend that the trial court erred in submitting the case to the jury, for the reason that the verdict is opposed to the undisputed physical facts and is in contradiction of physical laws,—citing Dodds v. Omaha & C. B. Street R. Co., 104 Neb. 692, 178 N. W. 258; Elwood v. Schlank, 126 Neb. 213, 252 N. W. 828; and Kalman v. Pieper, 158 Wis. 487, 149 N. W. 203. The first case cited dealt with a carrier and passenger; the- second was an action for personal injuries; and the third case dealt with master and-servant; but these cases were cited by appellants for the.principle of law announced.
Formidáble expert testimony is offered, and it would unnecessarily lengthen this opinion to detail all of it; but, for the benefit of appellants’ contention, we recite a part thereof briefly as follows: The dam as constructed does not cause water to overflow any portion of the northeast quarter of section 31, considering the ground levels of the land which vary from 6.25 feet at its lowest point to 10.82
While the testimony of the experts is impressive and instructive, still it presented facts to be submitted to the jury, and is entitled to the weight the jury might see fit to give it. Plaintiffs have shown the condition which existed before and after the construction of the dam. True, this is lay testimony, but testimony which is entitled to such consideration as the jury might see fit to give to- it.
Taking into consideration the' test- holes dug in various parts of the land in which the water raised to- heights above the level of the dam top, the water in the river upstream was also higher. Therefore, it is claimed, the river was retarded and its volume increased by the dam, and the river was so affected through plaintiffs’ land. Of course, the whole stream to some extent would be affected; 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. Some of the measurements showed water higher than the. adjacent stream. . The, evidence is not: conclusive that the water in
Again, there are certain water-tables analyzed in the evidence, and from the figures the water levels in the various test holes increased from November to December, and increased still further from December to March. The question arises as to whether or not the dam impounded these waters and to some extent backed them up beneath the plaintiffs’ land. We must remember that the dam raised the elevation of the water at the point where it- was constructed and that, where such elevation is now 5 feet 1 inch, it was formerly 18 inches. Certain water levels were taken which will not be repeated in this opinion, but which were for the purpose of -showing beyond question that defendants’ dam did not affect the ground water levels under the plaintiffs’ land in the northeast quarter-of section 31. The general slope of the alfalfa area -is- from northwest to southeast, and the water, - surface and subsurface, turns in that direction. All of the evidence must-be taken into consideration, and we do not believe that defendants’ evidence is .of such a conclusive nature that it would bar the right of plaintiffs to have the question submitted to the jury. If the water-tables. were raised by elevating the stream, plaintiffs would be entitled, under their pleadings, to recover. 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 erection of a dam. Flader v. Central Realty & Investment Co., 114 Neb. 161, 266 N. W. 965.
We have set out hereinbefore the construction of - defendants’ dam and believe such construction is permanent, and that plaintiffs were entitled to have submitted to the jury the permanent damages. Some objection is made on the part of appellants that plaintiffs must be bound by the damages that accrued immediately after the construction of the dam, and not for the period
In Meister v. Krotter, supra, the proper measure of damages is stated in syllabus No. 1 as follows: “In assessing recovery for permanent damages to land, the evidence must show witlg reasonable arithmetical certainty the values before and after the event- which gives rise to the action."
Apparently, the above case was reversed because the evidence did not show with reasonable arithmetical certainty the values before and after the event which gave rise to the action. This record discloses the value of plaintiffs’ land before and after the erection of the dam, and an examination of the record discloses that the elements of damage were taken into consideration. We believe that the plaintiffs had, without doubt, a right to testify as to the value of their land before and after the erection of the dam. It is well established that the owner of property may testify as to its value. The other witnesses, farmers and landowners in the vicinity, gave their opinions, based on proper questions, as to the respective values of plaintiffs’ land, which was a matter for the jury’s determination. We see no -error in the' admission of this testimony.
Certain exceptions were taken' to the remarks of the trial judge through the course of the trial. After a careful examination of the record, we are convinced that the court made no statements that affected the substantial rights of - the defendants, or "such as would constitute reversible error.
Exceptions have been taken to instructions given by the trial court, but under our analysis of the evidence and the measure of damages in this case, the instructions, considered as a whole, properly state the law, and we believe there is no prejudicial error therein, and no prejudice resulted to the substantial rights of the' defendants by the giving of such instructions. Other -assignments- of error are without merit.
The order, therefore, will be that, if within 20 days from the releasing of this opinion, plaintiffs will file a further remittitur of $600, the judgment so reduced will be affirmed for $2,400; otherwise, the judgment will stand reversed and a new trial ordered.
Affirmed on condition.