Armbruster v. Stanton-Pilger Drainage Dist.

• Decision Date: 15 November 1957
• Docket Number: STANTON-PILGER,No. 34251,34251
• Citation: 165 Neb. 459,86 N.W.2d 56
• Parties: Bert ARMBRUSTER and Irene Armbruster, husband and wife, Appellants, v.DRAINAGE DISTRICT, Appellee.
• Court: Nebraska Supreme Court

Page 56

86 N.W.2d 56

165 Neb. 459

Bert ARMBRUSTER and Irene Armbruster, husband and wife, Appellants, v. STANTON-PILGER DRAINAGE DISTRICT, Appellee.

No. 34251.

Supreme Court of Nebraska.

Nov. 15, 1957.

Syllabus by the Court.

1. If a defendant in an action in equity moves at the close of the evidence of the plaintiff for a dismissal of the action for want of proof to support a judgment, he admits the truth of the evidence and any reasonable conclusions deducible from it.

2. Where water, be it surface water, the result of rain or snow, or the water of springs, flows in a well-defined course, be it ditch, swale, or draw in its primitive condition, and seeks its discharge it a neighboring stream, its flow cannot be arrested or interfered with by a landowner to the injury of the neighboring proprietors, and what a private proprietor may not do, neither can the public authorities, except in the exercise of the power of eminent domain.

3. Where the flow of water in a well-defined course which seeks its discharge in a neighboring stream is interfered with to the injury and damage of a neighboring proprietor an action in equity is available to prevent such interference.

4. The right to maintain an action for recovery of damages based upon Article I, section 21, of the Constitution of Nebraska, is not dependent upon whether or not a claim for damages has been filed by the person whose property is taken or damaged.

5. For the taking or damaging of property outside the boundaries of a drainage district liability attaches under Article I, section 21, of the Constitution of Nebraska, and notice to the drainage district pursuant to section 31-451, R.R.S.1943, is not a condition precedent to the maintenance of an action for damages.

6. Where land outside the district has been and is being damaged by a drainage district an action for equitable relief and one for damages may be joined.

7. Where a court of equity has obtained jurisdiction of a cause for any purpose, it will retain it for all, and will proceed to a final determination of the case, adjudicate all matters in issue, and thus avoid unnecessary litigation.

8. Where it appears that the dismissal of a plaintiff's cause of action was erroneous, the parties are entitled to be placed in the same position they were in before the error occurred, which requires the cause to be remanded for a new trial.

R. M. Mueting, R. J. Shurtleff, Norfolk, for appellants.

T. L. Grady, Stanton, for appellee.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL and BOSLAUGH, JJ.

YEAGER, Justice.

This action as originally instituted was for mandatory injunction by Bert Armbruster and Irene Armbruster, husband and wife, and joint owners of a half section of land in Stanton County, Nebraska, plaintiffs and appellants herein, against Stanton-Pilger Drainage District, defendant and appellee. Later and amended and supplemental petition was filed. By this petition the plaintiffs renewed their application for mandatory injunction and in addition sought a judgment for damages. Issues were joined and a trial was had to the court. At the conclusion of the evidence of plaintiffs, on motion of the defendant, the petition of plaintiffs was dismissed. A motion for new trial was filed by plaintiffs which was overruled. From the order overruling the motion for new trial and the decree dismissing the action the plaintiffs have appealed.

The amended and supplemental petition embraces all of the essential features of the original petition with additions, hence for the purpose of this opinion reference will be made to it as the petition.

The factual situation upon which the determination depends substantially declared by the petition and disclosed by plaintiffs' evidence is that during, prior, and subsequent to 1950 and 1951, the plaintiffs were the owners of the north half of Section 24, Township 23 North, Range 2 East of the 6th P.M., in Stanton County, Nebraska; that the land was used for agricultural purposes and on it were barns, sheds, feeding yards, fences, and residence buildings; that about 200 acres were irrigated and highly productive; that prior to 1950 and 1951 the Elkhorn River extended from west to east in loops or in a meandering course about 1/2 mile to the north of this land; that a stream known as Cedar Creek entered plaintiffs' land from the south at a point near the southeast corner and extended northward leaving the land through the north line, and from there flowed on northward and prior to 1950 and 1951 emptied into the Elkhorn River; that no part of plaintiffs' land is within the Stanton-Pilger Drainage District except the northwest 40 acres which 40 acres are not involved in the matters to which this action relates; that in 1950 and 1951 the defendant, a duly and regularly organized drainage district, constructed a channel, referred to as a pilot channel, across the body of land within one of the loops for the passage of water which otherwise would have run through the old river channel; that this cut cross the channel of Cedar Creek and caused the water from Cedar Creek to empty into this channel rather than into the old channel of the Elkhorn River; that the base or bottom of this pilot channel was several feet below the base or bottom of Cedar Creek and the Elkhorn River; that this brought about a drop or waterfall where the water from Cedar Creek emptied into the channel; that the condition thus created by the defendant caused the channel of the creek to erode upstream in Cedar Creek thus deepening and widening the creek; that the defendant was notified of the erosion but took no steps to prevent it; that the erosion has continued until it has reached to and into the portion of the creek within plaintiffs' land where it has caused and will continue to cause irreparable damage to plaintiffs' land, the use thereof, and the buildings and structures thereon; and that there are means and methods whereby the defendant could have prevented the damage and injury which has ensued and which if employed can prevent further damage and injury, which means the defendant has failed to employ although it has had notice and knowledge of the condition which exists and its probable future consequences.

There is no substantial contention that the defendant lacked power and right to construct the channel as it did, but only that injunction is available to plaintiffs to protect them against further injury and damage in view of the fact that protective measures are reasonably available, and that the plaintiffs are entitled to recover damages for the injuries already sustained.

The plaintiffs alleged that they made attempts to protect against the condition and the consequences thereof of which they complain and in connection therewith they have alleged damages in the amount of $11,377. They have alleged damage occasioned by the cost of repairs in the amount of $1,611.25. They have also alleged damage to land and business operations in the amount of $45,000. The total of these is $57,988.25.

The prayer is for a mandatory injunction requiring the defendant to do that which is necessary to protect the land and improvements thereon from further damage, and for a judgment for the amount of the damage already sustained.

As pointed out, the action was dismissed at the close of plaintiffs' evidence. Under these circumstances the record must be considered in the light of whether or not a cause of action for the relief prayed has been proved. For this purpose the court must accept as true the evidence of the plaintiff and any reasonable conclusions deducible from it. In Adams v. Adams, 156 Neb. 778, 58 N.W.2d 172, 173, it was said: 'If a defendant in a suit in equity moves at the close of the evidence of the plaintiff for a dismissal of the suit for want of proof to support a judgment, he admits the truth of the evidence and any...