| Neb. | Jul 15, 1887
The plaintiff alleges in his petition, “that the said plaintiff was the owner of and in the actual occupation and possession of the north-east quarter of section nineteen, town four N., range fourteen east, Nemaha county, Nebraska, from about the first day of January, 1880, until about the first day of June, 1885; that the defendant was, and yet is, the owner of and in the actual occupation and possession of the east half of the southwest quarter, and the west half of the south-east quarter of section nineteen, town four N., range fourteen east, Nemaha county, Nebraska; that in the summer of 1882, the said defendant proceeded to and was building and constructing a ditch and embankment along the north line of his premises herein described in such a manner as to turn all the water arising, from ‘ Spring Branch ’ away from, its natural course and direction, which was over and across the defendant’s premises, and precipitated said waters in and upon the premises of the plaintiff herein mentioned, to the great damage and injury of the plaintiff; that the district court of Nemaha county, Nebraska, did,
“ Plaintiff has suffered damages in the sum of one thousand dollars, no part of which has ever been paid; plaintiff therefore prays judgment against the defendant for the
The answer is a general denial.
On the trial of the cause to a jury the following stipulation was introduced in evidence: “ The said parties stipulate and agree that injunction as prayed against defendant’s making any embankment such as is described in the petition be made perpetual, with a mandatory order that •defendant shall make three clear and clean openings in the said embankment which he has already erected in the premises, each of said openings to be one rod wide, and shall be located as follows: one opposite and just south of the south-west corner of plaintiff’s land, described in the petition, and one such opening shall be ten rods west of said south-west corner of plaintiff’s said premises, and the third said opening shall be forty rods east of said southwest corner of plaintiff’s said premises.
“ And defendant shall have the right to make ditches on his own land, free and clear of embankments, [that will gather and back water] towards the Muddy to the extent of his line, and plaintiff will furnish right of way from defendant’s line to extend such ditch to the Muddy free of charge. The ditch from defendant’s east line eastward to the Muddy shall be made by the defendant to correspond in size and depth with the ditch west of there.
“ The said three openings in embankment and said ditch shall all be made by defendant within one month from this date. Plaintiff shall pay the defendant ten dollars, and defendant shall pay all costs herein.
“ Judgment, decree, and order shall be entered according to this agreement.
“March 20th, 1883.
“Eudoldh: Schneider,
“By J. H. Broady, Att’y.
“E. A. Stewart,
“By B. O. Wilkinson, Agt. and Att’y.”
“ Lived seventeen years within one and one-fourth miles of premises; plaintiff is my son-in-law; know the ditch, which is about half a mile long; plaintiff’s west J of north-east J, 19-4-14, is north of the ditch, and Stewart' and Kleckner’s land south; all the parties were resident' occupiers in 1884. The ditch is about eight feet wide until it gets to Mr. Kleckner’s corner. On March 20, 1883, about fifty or sixty rods of embankment was thrown up on south side of ditch, running perhaps fifty rods east of Schneider’s south-west corner. On March 23 or 24,1884, I went along the,' whole ditch, and there appeared to be a dense embankment; a ditch due south from the end of the east line of Schneider’s west eighty, with north-énd filled up, and a continuous embankment from there to the bluffs, and the water there was fifteen inches more on Schneider’s land, where he lost his corn crop by reason, of the water striking the embankment, except in a few places where it seeped through, than it was' on Stewart’s. Part of the ditch was constructed east of Schneider’s south-west corner, and a part west at the time of the injunction^ The' ditch constructed West, after the injunction, to the bluffs, averaged eight feet (in some places it might have been ten feet) and fifteen inches deep; and the eastern part on to the Muddy, where it was perhaps all on Schneider’s land, some dirt was thrown out on the north side, brit the heaviest portion on the south side; depth of about six inches, until it empties; there was a considerable washout on the Muddy.
“ The defendant told me he made that ditch shortly after high water in March, 1884. At the Muddy the ground is
On cross-examination, he testified:
“ When Stewart was stopped by the injunction, I don’t think he had got as far east as Kleekner’s ditch. The mouth of Spring branch is about twenty rods north of the ditch, and before the embankment the flow was eight to ten rods west of the corner, and the other (Bennett’s) water passed on ten or twelve acres of grass land west of the farming land, in its course south-east, and then off onto Stewart’s land and run south-east on Schneider’s W. line. Where Bennett’s water struck the grass land there was once fifteen or twenty rods of ditch, which Schneider cut one or two spades wide, but don’t think that ditch was*294 brought within a rod of the other ditch. I think it stopped two or three rods back — I cannot state. It now enters Stewart’s ditch. That ditch wa's dug to turn the water south, where it struck the grass, and it would pass Stewart’s anyway. Schneider’s ditch was cast of the flow of Spring branch. Where Spring branch comes on the Muddy, the bottom land it is nearly level, with grass and weeds in the old channel, and may be now, since Stewart’s ditch, black weeds near to the center of the corn field, and may be also pools. The strip of grass on Schneider’s south-west corner is the lowest of his land. For the last seventeen years, there has never been a duck pond in the center of Schneider’s corn ground, and water did not stand there before' the ditch was made. . It is higher on the Muddy than west. The land was first broken in 1873, and Schneider raised crops from 1875 to 1884, there being one entire failure in 1883, when the overflow of the Muddy took all the crops in the bottom. A part of first crop (wheat) in 1875 was lost. I have not known an entire failure till the embankment, when a crop was planted. About March 20 or 24, 1884, I went to examine the embankment, because fifty acres of Schneider’s land was overflowed to a depth of one foot to fifteen inches. I went to see the situation, and not for the purpose of a lawsuit, and I have no. money interest in this suit. I was there about the latter part of June, 1884, and at other times. When I saw it on March 24, 1884, the embankment began at Kleclmer’s corner, and was continuous west.- It was extended continuously to the bluffs since the injunction. The temporary injunction was served after harvest, 1882. I saw the first embankment in the fall of 1883, and also saw it when partly constructed in the fore part of the season. From Stewart’s east line to-the Muddy, in March, 1885, the ditch was narrow and shallow, with not capacity to carry one-tenth of Spring branch, and more dirt is thrown out south and north, but that ditch would not make a high embankment. I described*295 that ditch as six inches deep, but it gets deeper west. At the west, a part of the water used to run over Schneider’s land, and there were several places where water could stand in winter, but it dried or run off at the time the other land was ready for the plow. The ditch does not carry off the water; it backs on a portion of Schneider’s field.
“It is not the fact that there is a strip of grass land north of the ditch higher than the ditch. I saw the ditch between March 20 and 24,1884, measured eight feet wide at many places west of Kleckner’s corner, but did not measure it myself. From the time the injunction was made perpetual till March, 1884, I did not go to the ditch and embankment to examine them. I thought the matter settled. I cannot state the situation in March, 1883. In 1884 there were heavy rains, the Muddy did not overflow, and the flow I speak of came from Spring branch and the place above. The ditch was highest at the north so the water could not pass.”
One Dawson, a surveyor, testified that he had taken levels of the ditch and embankment, and that an obstruction at the ditch embankment which would raise the water six inches would cause it to flow back on the land of the plaintiff below from 300 to 500 feet. He also produced a plat made by himself from his surveys.
R. A. Stewart, the defendant below, testified, in substance : “Under the stipulation and injunction I had to open the ditch from Kleckner’s corner, and to make three openings, each a rod wide — one ten rods west of Schneider’s south-west corner, two immediately south of the corner, and three forty rods east of that corner. This was March 20th, 1883, and I took men, plow, and scrapers, and finished the work in twenty-one or twenty-two days. I measured each of the openings a rod wide, cutting them down and clearing them out to the sod, and they have always been open since that time. In the spring of 1882, Schneider constructed a ditch, starting from the south-west corner and
The testimony of the other witnesses tends to corroborate that of Carnes and Stewart. The jury returned a verdict in favor of the plaintiff below for the sum of $275, upon which judgment was rendered. The first objection made in this court is, that the verdict is not sustained by the evidence. This objection, however, is unavailing, as the testimony is nearly equally balanced and
Second. Objections are made to the following instructions given by the court:
“ 1. You are instructed that if you believe from the evidence that the plaintiff and defendant entered into the ■stipulation, and á decree or order of injunction was rendered thereon, which have been introduced in evidence, and if you further find from the evidence that the defendant violated the terms of said stipulation and decree, or order of injunction, as alleged in petition, and in consequence of such violation the plaintiff has been damaged as in the petition alleged, then you will find for the plaintiff.
“ 2. You areinstructed that if you believe from the evidence that the waters in the vicinity of the plaintiff’s lands, in the time of high water, collect near and overflow plaintiff’s land, or a portion thereof, this will not prevent the plaintiff from recovering damages from the defendant. If you further find from the evidence that plaintiff and defendant entered into a stipulation for a decree of injunction, as claimed in the petition ; and if you also believe that defendant violated said stipulation and order of injunction, as claimed in the petition, and that in consequence of such violation a larger volume of water was forced over on ■plaintiff’s grounds, or that a larger portion of plaintiff’s land was overflowed, or that said water was held there fox' a longer time as .the result of said violation; if you believe from the evidence there was such a violation, and that plaintiff’s crops were injux’ed to a greater extent than they would have been from the natural overflow, you shoxxld find for the plaintiff. And if you do so find, then the measux’e of damages is the difference in amount between the damage he sustained from the natural overflow, and the amount of damage caused by the increased overflow of his land. If you find there was such increased overflow, and in your verdict you should endeavor to repair the actual loss, if*300 you find the plaintiff has sustained damages as claimed in his petition.
“ 3. If you find for the plaintiff, his measure of recovery will be the actual injury to plaintiff’s corn crop and hay at ■the time and place they were damaged; if you find from the evidence they were damaged in consequence of the violation of said stipulation and decree by defendant, as shown by the evidence.”
These instructions conform to the testimony in the case, and there was no error in giving the same.
The defendant below asked the following instructions which were refused:
“ 1. The jury are further instructed that unless you find from the evidence that there has been a violation on the part of the defendant of the order and decree of injunction mentioned in plaintiff’s petition, this plaintiff' cannot recover for water backed upon the lands of plaintiff by the embankment of said ditch, unless you find that said water so diverted was a living stream or water-course; and unless you so find from the evidence that said embankment has diverted and thrown back upon the lands of this plaintiff the waters of a living stream or water-course, you will find for the defendant.
“ 2. The jury are instructed that if you should find from the preponderance of the evidence that the plaintiff is entitled to damages, as claimed in his petition, on the account of the loss of his crop, then in that case you will, in ascertaining the amount of such damage so sustained by the plaintiff, be confined to the value of said crop of corn just as it stood on the ground immediately prior to the time it was alleged to have been destroyed, without any regard to its prospective value at any time thereafter.'
“ 3. The jury are instructed that, in order to entitle the plaintiff to recover in this action, it must appear from the ■evidence that the plaintiff has used due diligence and caution in order to protect his crop from damage arising from*301 the injury complained of, and unless you find he has exercised ordinary care and diligence to protect said crop from injury on account of the water being backed,up on it, and held there by said embankment complained of, you will find for the defendant.
“4. The jury are' instructed that the' plaintiff has the right to'rely on the stipulation and the judgment rendered thereon, and if you find from the evidence that defendant has not complied with the requirements of said stipulation and'judgment, and the plaintiff has been damaged on account of said defendant not complying with said stipulation and judgment, then you will find for the plaintiff and assess his damages at the amount he has sustained on account of said violation.”
These instructions were properly refused, as such portions of them as had not previously been given were not applicable to the testimony.
The case is one proper to submit to a jury to determine from the conflicting testimony whether or hot the plaintiff in error had constructed the embankment complained of without the openings required, and thereby caused the water of Spring branch to flow back upon the land of defendant in error, and destroy the crop in controversy. That the crop was destroyed all the testimony tends to show, and in our view a preponderance of the testimony sustains the verdict that the cause of the injury was the embankment erected by the plaintiff in error.
There is no error in the record, and the judgment is affirmed.
Judgment aeeibmed.