111 Neb. 540 | Neb. | 1924
In he eighties the Union Pacific Railroad Company dug a ditch south of its track, extending from its borrow pits to a natural waterway which meandered through plaintiff’s land or leasehold. This ditch passed the plaintiff’s leasehold on the west and was constructed to take care of spring and storm water coming down on the south side of the track. There seems to be no doubt that the company acquired a prescriptive right to have and maintain it for-that purpose. Nor did it damage the plaintiff or bring any protest from him so long as it was maintained for that purpose; for the spring water was comparatively little in quantity, and the storm water came down in the spring time and did not interfere with plaintiff’s use of his land for raising and making hay. And, as a matter of fact, up to 1914 the ditch steadily filled up, partially with growing trees and partially with earth and rubbish.
On the other or north' side of the company’s tracks were the Pawnee springs, flowing a great deal of water the year around, which water naturally went to the east in a swale or draw to a point some distance past the land of the plaintiff. But in 1907, or thereabout, certain interested persons on that side who wished to get rid of such water constructed
This was the basis of plaintiff’s suit. Appropriate pleadings were filed in the district court, and upon trial plaintiff recovered a judgment against the defendant for $583.62.
Three assignments of error are presented in the brief of the appellant: First, that the evidence was not sufficient to sustain the judgment; second, that the court erred in giving its fifth instruction; and, third, that the verdict and judgment are contrary to the instructions of the court.
Upon examination of the briefs and record, it becomes apparent that the case turns upon the question of law involved in the giving of said instruction five in conjunction with the instruction following — instruction six. The latter is as follows:
“You are instructed that the law does not make it the duty of the defendant to do anything with such water as may have been unlawfully diverted upon its right of way by some other persons, from the so-called ‘Bull ditch.’ The defendant may allow such water to flow as it would flow if defendant did nothing. The defendant also had the right to maintain the ditch along the west side of plaintiff’s premises, it having been there for such a period of time as to give the defendant a right by prescription to maintain the same and having been erected long prior to the so-called*543 ‘Bull ditch/ If you believe from the evidence that 'he erection of the so-called ‘Bull ditch’ by third persons was the proximate cause of the damage to the plaintiff’s crops, rather than an enlargement of the ditch along the west side of plaintiff’s premises by the defendant, then you will find for the defendant. The defendant had the right to clean out and maintain said ditch along the west side of plaintiff’s premises.”
The former, so far as pertinent to the question, reads:
“ That defendant, by and on account of cleaning out and enlarging the ditch which flows along the west side of plaintiff’s leased premises, so increased the flow of water in said ditch along the west side of plaintiff’s premises, that the leasehold and crops of the plaintiff were damaged to an extent greater than they would have been damaged had not such increased flow been brought about by said cleaning and enlarging.”
The complaint of the defendant company, appellant in this court, is that the instruction is prejudicially erroneous, in that it charges the defendant with the consequences of cleaning out the ditch, though by instruction six the jury were told that it was lawful for it to do so; in other words, in that it in substance charges as unlawful what was said to be lawful in the next instruction.
This would seem to be true at first blush. But it is to be remembered that this is not a case of fighting surface water, as many of the cases cited by the defendant are. In such cases the landowner may repel the enemy even to the damage of his neighbor, if the means employed by him be not negligent. But in the case at bar the defendant permitted the north-side owners to divert a continuously running stream from a swale, wherein it was naturally flowing past the plaintiff’s leasehold on the north side of the track, to its borrow pits on the south side. And then it proceeded to cast such diverted water upon the plaintiff’s land by opening and enlarging the ditch in controversy. The railroad company was thus guilty of an unlawful act for which it is not to be excused because the north-side owners were first guilty of
The defendant claims to have had a prescriptive right to open and enlarge its ditch, or at least to clean the same out. It may have had such a right for the purpose of caring for spring and flood waters coming down on the south side of the railroad track; but not for the purpose of caring for a stream of water unlawfully diverted from its natural course on the north side and unlawfully cast upon the defendant. A right by. prescription attaches only to the use originally enjoyed, and does not extend to a use of different character, or to one of the same character requiring greater room. “A prescriptive right.is not enlarged by an enlarged use during the period of prescription enjoyed by those who claim it, but is measured by the extent of the -use at the commencement of the period.” Behnisch v Cedarburg Dairy Co., 180 Wis. 34. And, as the appellee logically argues, it is perfectly plain that an enlarged use, such as is contended for in- the instant casé, stands in exactly the same' legal status' as an attempted user for a definite and distinct purpose,-' be
The contention of the defendant is that it was incumbent upon the plaintiff, in order that a recovery might be had upon the petition, to prove the particular damage resulting from the enlargement. There is no question that the ditch was not only opened, but considerably enlarged. In effect this is answered, we think, by what has been said in the preceding paragraphs. The defendant had a right to use the original ditch to carry away surface water. After a lapse of years it cleaned out and enlarged said ditch, not to make it a drain for surface waters, but to make it a bed for a river. In a small degree this is exactly what was accomplished by the act of the defendant.
It appears from the evidence beyond dispute that before this was done plaintiff was able to make hay upon his land profitably and comfortably. Then he could go straight to town across his land. Afterward, much of his hay land was destroyed, and he had to go three miles around to town. There is no doubt in the mind of this court that the verdict was according to law, and that the evidence fully sustains the same.
It appears that the two instructions referred to are in part conflicting, and that the same may have been somewhat confusing to the jury. But the conflict and the confusion, if any, were certainly to the prejudice of the plaintiff, rather than to that of the defendant. There may have been error in the instructions in the form in which they were given, but, if there was, it was not prejudicial.
There being no prejudicial error in the record, we are of opinion that the judgment of the lower court should be affirmed, and it is so ordered.
Affirmed.