63 Neb. 610 | Neb. | 1902
This action was brought, for the recovery of damages resulting from the alleged wrongful construction by the defendant company of an embankment across a ravine, whereby the. surface water was diverted from its natural course and discharged in large quantities upon the premises of the plaintiff, inflicting the damages complained of. A trial resulted in a verdict and judgment for the plaintiff. The defendant brings the case here on error.
The petition, omitting the formal parts, is as follows:
“(2.) That on and long prior to the 23d day of April, 1892, plaintiff was the owner in fee of the following described property, to-wit: lots 3-, 1, block 26, in the town of Hickman, Lancaster county, Nebraska, and was in possession thereof, and had erected thereon a livery and feed stable, and other buildings, in which were contained a large number of horses and hay and grain, carriages, harness, etc., necessary for the carrying on of a livery and feed business. (3.) That adjacent to said lot on the south and southeast side thereof is a ravine or draw of considerable depth, extending from the higher lands above said property and for a distance of - miles, into which ravine or draw the water from a large tract of land collected, and is emptied into a stream known as ‘Salt Creek,’ a short distance from said property. (4.) That on or about the-day of-, 1888, the defendant company erected an embankment across said ravine or draw and between plaintiff’s said property and Salt Creek, to a height of about 6 feet, which embankment is the road-bed of said
The defendant interposed a general demurrer, which was overruled; which ruling is now assigned as error. The petition is assailed on two grounds: First, because it shows on its face that the cause of action is barred by the statute of limitations; and, second, because it does not allege that the embankment crosses a watercourse or channel, nor that it was wrongfully constructed. As to the first, we
It is next urged that the court erred in refusing to give at defendant’s request the.following instructions:
“1. The jury are instructed that in Nebraska the common-law rule prevails, touching the damages occasioned by surface water such as are sought to be recovered in thh
“2. The jury are instructed that it is important in this case to determine what is a stream or watercourse; and you are instructed that to constitute a watercourse the size of the stream is not material. It must however be a stream in fact as distinguished from mere surface drainage occasioned by freshets or other extraordinary causes, but the floAV of water need not be continuous. There must be a stream usually flowing in a particular direction, though it need not flow continually. It may sometimes be dry, but it must flow in a definite channel, have a bed, sides or banks and usually discharge itself in some other stream or body of water. It must be something more than a mere surface drainage over the entire surface of a tract of land caused or occasioned by freshets or other extraordinary causes. It does not include waters floAving in hollow ravines in land, which is mere surface water from rains or melting snow, or is discharged there through from a higher to a lower level, which at other times are destitute of Avater.”
These instructions were properly refused. They do not. state the law applicable to the facts in this case. See Lincoln & B. H. R. Co. v. Sutherland, 44 Nebr., 526; Town v. Missouri P. R. Co., 50 Nebr., 768; Chicago, R. I. & P. R. Co. v. Shaw, 63 Nebr., 380. In the last case Com
Complaint is made of the admission of certain evidence, which complaint is formed in these words:
“This line of testimony was erroneously admitted by the court, because under the pleadings the railroad company was charged with stopping the flow of water that came in a southeasterly direction from the bam. We contend first that under the pleadings no testimony could be admitted showing that the water came from the northeasterly direction when we were charged from stopping the water that came from the southeasterly direction; and second, we contend, that it was error to admit this testimony showing that the water came from a north and northeasterly direction through ditches along by the public highway to the point- on the railway company’s embankment just opposite the barn in question, which accumulation of water at this point was made because of the ditches in the public highway. We contend that the diversion of the surface water by means of the ditches along the public highway, and throwing off of the same upon the right of way of the railway company was a condition over which the railway company had no control and could not have at the time of the construction of the embankment years prior.”
In the first place, the petition was amended to change the allegation as to the direction from which the water came. Besides, in cases like this, where it is necessary to describe the lay of the land, in order that the jury may
Complaint is made of the admission of certain expert testimony as to the value of some of the property alleged to have been injured by the water; but no complaint is made on that ground in the petition in error, unless it be under the general assignment of errors of law occurring during the trial; but such assignment, under the repeated holdings of this court, is too general to receive attention.
• It is urged, further, that the court erred in permitting the amendment of the petition, as to the direction of the flow of water, and in denying the defendant’s request for a continuance to enable it to meet the proof in support of such amendment. Such matters are largely within the discretion of the trial court. Our attention has not been directed to any showing, made by the defendant, that a continuance was necessary to enable it to meet such evidence, nor have we been able to find any record of such showing. Hence, we can not say there was an abuse of discretion by the trial court in this behalf.
The defendant insists that the damages sought to be recovered are too remote. The damages claimed are for injuries to certain animals, resulting from their standing in water of considerable depth which flooded the stable. It is claimed that they were rendered thereby less valuable for breeding purposes, which appears to have been the purpose for which they were kept. We can not see that any such damages are any more remote than injuries that would have rendered them less valuable for any other purpose. Had the damage been to lumber, or to any other kind of personal property, the ultimate question would hare been precisely the same as that presented in this
It is urged further that the verdict is not sustained by sufficient evidence. Our attention is specifically directed to the evidence on the point, whether the embankment was constructed properly and with due care. That question was submitted to the jury, after an instruction on the same point had been tendered by the defendant. It is a well-settled rule of this court that a party who asks the submission of a question to a jury will not be heard to say that an adverse finding thereon is not sustained by sufficient evidence. Besides, in our opinion, it can not be fairly said that the verdict is not sustained by sufficient evidence.
We recommend that the judgment of the district court be affirmed.
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is
Affirmed.