97 Neb. 400 | Neb. | 1914
Action in the district court for Dawes county for damages alleged to have accrued to plaintiffs by depriving their cattle of water during the month of August, 1911.
The plaintiff's alleged, in substance, that they leased the-southeast quarter of section 4, township 82, range 51 west, in said county, for the purpose of pasturing their cattle-thereon; that a stream of water, called Little Cotton Wood.
The defendant, by his answer, alleged that he had a lease on the southeast quarter of section 4, township 32,. range 51 west, and that plaintiffs were trespassers thereon. Defendant denied the allegations of the petition, and set up a claim of right to the water taken by him. Defendant made a counter-claim of $250 for damages to his crop of hay, alfalfa and corn by the plaintiffs’ cattle, which he alleged had trespassed on his premises. The allegations of the answer were denied by a reply. The cause was tried to a jury, and a verdict was rendered for plaintiffs for the sum of $397.50. A motion for a new trial was overruled,, judgment Was rendered on the verdict, and the defendant has appealed.
The appellant, by his brief, has presented the following questions for the consideration of the court: First. Is the verdict supported by the evidence? Second. Did the court err in his instructions to the jury?
As to the condition of plaintiffs’ cattle, the- testimony shows that they had shrunk in weight; that they were just milling around the pasture all the time; and that they shrank from 65 to 75 pounds a head. The testimony also shows that plaintiffs complained to the state board of irrigation that the defendant was depriving them of water for their stock; that Mr. Francis, an assistant to the state engineer, and Mr. Cripps, a man he sometimes employed to do the work for him when he could not do it himself, went • to the defendant’s dam and lifted the slushboard so as to let the water flow down the channel of the stream, and adjusted the defendant’s headgate to his irrigation ditch; that plaintiffs again complained, and the assistant engineer again visited the defendant’s dam and found the slushboard nailed down and banked up with dirt, and that all the water was going through defendant’s irrigation ditch; that he again raised the slushboard and adjusted the headgate. The testimony shows that before defendant nailed down the slushboard on his dam there was a good steady flow of water down the stream, sufficient for domestic use, and to supply water for the use of plaintiffs’ cattle. The testimony also shows that the defendant was seen frequently at his dam with a shovel on his back.
Mr. Francis testified, in substance,. that he was superintendent of the district where the defendant’s dam was situated; that he was at the headgate of the defendant’s irrigation project; that the defendant had a dam in the
Without further discussion of tbe evidence, it is sufficient to say that plaintiffs’ cattle were damaged by being-deprived of water during tbe month of August to a large amount.
Tbe defendant, by bis evidence, failed to deny any of tbe material facts testified to by plaintiffs’ witnesses, and introduced no evidence showing, or tending to show, anyrigbt on bis part to maintain tbe slusbboard on bis dam, and thus turn tbe water into bis irrigation ditch and de-' prive tbe plaintiffs of a sufficient amount of water to supply their stock. In fact, tbe defendant admitted that bis crop was all made at tbe time, and be bad no use for tbe water for irrigation purposes.
Tbe plaintiffs admitted that their cattle bad trespassed upon tbe defendant’s premises,, and damaged him to some extent. Tbe testimony as to tbe amount of damages varied from $79, as testified to by disinterested witnesses, up to $250, according'to tbe defendant’s own testimony. Tbe questions as to tbe amount of plaintiffs’ damages and as to tbe defendant’s counter-claim were properly submitted to tbe jury. It appears that plaintiffs’ cattle fell off from 50 to 75 pounds a bead, and that tbe market value of tbe cattle was from 4 to 5 cents a pound, and tbe damage for that item alone was about $800. Giving tbe defendant.
It is contended that the court erred in giving certain instructions to the jury upon his own motion, to wit, Nos. 4, 5, and 7. Instructions numbered 4 and 5 the appellant discussed together in his brief. By instructions 4 and 5 the jury were told, in substance, that if the defendant' .wrongfully and purposely diverted the water from Little Cotton Wood creek to such an extent that plaintiffs’ live stock were deprived of sufficient water for their maintenance, and if defendant diverted the water from said stream and refused or neglected to permit sufficient w.ater to flow down the channel of the stream to water plaintiffs’ stock, then he would be liable for any damages which might result by reason thereof. It is insisted that these instructions were clearly wrong. It is argued that plaintiffs were not the owners of the quarter section through which the stream flowed, and were owners of large tracts of adjoining land; that they pastured 309 head of cattle upon this land, and that all of the 309 head of cattle obtained water at the watering place on the 160-acre tract, and it is insisted that plaintiffs had. a right to water not to exceed 8 or 9 head of cattle, because those were all the cattle which the 160 acres of pasture would support that season; that by the instructions the court set at naught the rights of the defendant, and granted to the plaintiffs a greater right than was warranted by the law of riparian rights.
As we view the record, that question was not involved in this controversy. The defendant, by his testimony, made no claim that, by allowing the water to flow down the stream to the plaintiffs’ watering place, he would be deprived of the use of the water to any extent whatever. On the other hand, he testified that he had no use for the water, because the irrigation season had terminated. This being true, no riparian right was in any manner involved in this controversy. The testimony shows that, if the defendant had not wrongfully interfered with the flow of the stream,
By instruction No. 7 the jury were told, as a matter of law, that on and after the 9th day of August, 1911, the defendant had no valid lease of the quarter section of land in question, and was not entitled to the possession and control of the same as against the plaintiffs. It is contended that this instruction was erroneous, because there was a conflict in the evidence upon this question. As we view the record, there was no conflict which would require a different instruction. The plaintiffs had a lease, properly executed, for the land, and all that the defendant’s testimony shows is that he had been given an agency to lease the land, and that he had not leased the land to any one.
As we view the record, it contains no reversible error,, and the judgment of the district court is
Affirmed.