Applegate v. Platte Valley Public Power & Irrigation Dist.

• Decision Date: 12 May 1939
• Docket Number: 30516.
• Citation: 285 N.W. 585,136 Neb. 280
• Parties: APPLEGATE v. PLATTE VALLEY PUBLIC POWER & IRRIGATION DIST.
• Court: Nebraska Supreme Court

285 N.W. 585

136 Neb. 280

APPLEGATE v. PLATTE VALLEY PUBLIC POWER & IRRIGATION DIST.

No. 30516.

Supreme Court of Nebraska.

May 12, 1939

Syllabus by the Court.

1. " As a general rule, if a nuisance is permanent in character, is intended to remain in the condition in which it was erected until destroyed by the elements, and the damages are to the land itself, especially where the erection is for a public or semipublic purpose, the damage is treated as original, to be recovered in one action, and not continuous in character." Irvine v. City of Oelwein, 170 Iowa 653, 150 N.W. 674, L. R.A.1916E, 990.

2. The measure of damages for the injury to the land is the difference in value before and after the dam was erected taking into consideration the uses to which the land was put and for which it was reasonably suitable. To determine any such loss, the present condition of the soil proximately caused by the damming of the water and all effects up to the present time would be relevant to determine its value.

Appeal from District Court, Lincoln County; Nisley, Judge.

Action by Lincoln C. Applegate against the Platte Valley Public Power and Irrigation District, a corporation, for damage to plaintiff's land and leasehold, caused by seepage from defendant's intake canal and reservoir. From a judgment for plaintiff, defendant appeals.

Affirmed.

Beeler, Crosby & Baskins and Robert B. Crosby, all of North Platte, for appellant.

Wells C. Jones, of North Platte, for appellee.

Heard before SIMMONS, C. J., and ROSE, EBERLY, PAINE, CARTER MESSMORE, and JOHNSEN, JJ.

SIMMONS, Chief Justice.

This is a suit for damage to plaintiff's land and leasehold, caused by seepage from the intake canal and reservoir of the defendant. Judgment was for the plaintiff. Defendant appeals.

The plaintiff owns and is in possession of 312 acres of land along the South Platte river in Lincoln county. He also is the tenant of land adjacent to his fee title land. This land has a good top soil over sand and gravel, is subirrigated by the natural waters that flow under the land, and in its natural state produced abundant crops.

The defendant is a district organized under the provisions of Senate File No. 310, Laws 1933, ch. 86, now (as amended) sections 70-701 to 70-717, Comp.St.Supp.1937. The function of the defendant is generally that of the storage and sale of water to irrigation districts and the development and sale of electrical power.

Defendant's reservoir covers an area of about 2,500 acres, and is so constructed that it will hold at full capacity 175,000 acre-feet of water. In the construction of the reservoir, it was necessary to use large quantities of earth in building two dams. Top soil was removed to a depth of twelve feet in many places from about ninety acres inside the reservoir. There was exposed thereby an underlying strata of very sandy porous soil. The lands of the plaintiff lie between the defendant's reservoir and the river. The bottom of the reservoir is about sixty feet above the level of plaintiff's land. The defendant started to store water in its reservoir in December, 1935, and at one time had in storage approximately 70,000 acre-feet of water.

Within approximately sixty days after the defendant started to store water in its reservoir, seepage appeared on plaintiff's lands. In 1936 the defendant agreed with the plaintiff to construct and maintain a drainage ditch to remove the seep water and maintain the normal water level. A drainage ditch was constructed that year.

In 1937 there was a major break in defendant's canal. The flood water overflowed large areas of plaintiff's lands, further saturating them. When this flood water receded, the drainage ditch was found to be washed deeper than it had been constructed, and, as a result, certain areas of plaintiff's subirrigated land became dry, and plaintiff was compelled to irrigate those portions by pump irrigation.

The seepage continued on other parts of plaintiff's land. Defendant attempted to relieve the seeped condition of the land of the plaintiff and others by an extension of its drainage system. This had some effect, but as a result of the seepage in 1936 and 1937 a large area of plaintiff's lands became water-logged, alkali deposits were left upon the surface soil, alfalfa and valuable native grasses were killed, and annual crops were destroyed or damaged.

Plaintiff sued, alleging these facts. The first cause of action was for damages to his lands owned in fee and for loss of crops thereon. The second cause of action was for damages for loss of the value of the alfalfa during the years 1936 and 1937 on the leasehold.

Defendant's answer admits its corporate capacity, the construction and maintenance of the storage reservoir for use in supplementing water of the Platte river for irrigation purposes and development of electrical energy, and generally denied the other allegations of plaintiff's petition.

Plaintiff's witnesses testified as to the facts herein recited. Plaintiff's witnesses, over objection of the defendant, by reference to a chart setting out by areas the seeped, alkalied and other damaged parts of plaintiff's lands, testified as to the value of the land in 1935, and the value of the land at the time of the trial in 1938, based upon its then condition and productivity. The computed depreciation in value of the lands fixed by one witness was $7,051; by another witness, at from $5,339 to $6,657.50; and by a third, at from $4,158 to $5,807.50.

Defendant's witnesses did not testify as to the amount of the damages. They frequently admitted that the damage to plaintiff's lands was due to seepage from the reservoir. They testified that, if and as damage from seepage occurred, it was their purpose to drain the lands; that they had partially constructed a drainage system; and that if their contemplated drainage system was completed, and if it was maintained, and if it operated as they contemplated it should operate, they would be able to abate the seepage and the damage resulting therefrom.

Defendant admitted that it was speculative as to what effect this drainage system would have on the plaintiff's lands. Its witnesses stated that there was no way of knowing positively that it would relieve the damage from seepage; that the partially completed system had been effective in relieving excess waters, and that the completed system would " operate to improve," " materially drain," and " lower perceptibly" the seeped condition; that they could not say it would be 100 per cent. perfect, nor how many years it would take to effect that improvement; that it was too much to expect that the drainage system would restore all lands to their previous condition; that " if the drainage ditch was maintained, and assuming relative amount of seepage is the same," it would be beneficial; and that maintenance work on the drains at least once a year or oftener would be necessary.

The evidence shows that alkali deposits are in the subsoils in that area; that the seep water brings the alkali to the top soil; that, upon evaporation, the alkali is left in the top soil; also, that, if the water level is lowered permanently, additional alkali deposits will not accrue, and by the normal processes of rainfall, clean water coming onto the top soils would carry the alkali back into the lower soils and eventually remove it so far as its damaging qualities are concerned.

Evidence was admitted both as to the value of the use of the land and the depreciation in value of the land itself.

In rebuttal, plaintiff's expert witness testified that the drainage system, as constructed, and as contemplated, will not entirely relieve the seeped condition of plaintiff's lands. This witness agreed with the defendant's witnesses that as time goes on there will be a material deposit of soils in the bottom of the reservoir, and a considerable sealing will take place by that process, with the result that there will be a stoppage in the quantity of the leakage from that source. He further testified that the action of the water on the shallower portions of the reservoir will take therefrom the top soils and continuously expose graveled portions of the soil, where leakage will occur constantly; that this situation can never be cured; and that seepage will continue so long as water is maintained in the reservoir.

The reservoir never has been filled to capacity. At the time of the trial, it contained a small amount of water. Plaintiff's rebuttal witness testified that, when the reser voir is filled to capacity, there will be an additional quantity of water for seepage; that the leakage has a drop of forty feet to the mile; that the water will be under pressure, which will increase the leakage and increase, and not decrease, the seeped conditions of plaintiff's lands.

The jury viewed the premises. The jury awarded the plaintiff $6,500 on his first cause of action, and $600 on his second cause of action. Defendant does not complain about the latter award.

Defendant on appeal admits that plaintiff has suffered damage as a result of seepage from its reservoir. It contends that it constructed the reservoir with knowledge that seepage would occur; that, upon the first appearance of seepage, it had proceeded with plans for, and the construction and operation of, a system of drainage canals to relieve that condition and reclaim the lands; that damage must first accrue before it can be abated and...