Armbruster v. Stanton-Pilger Drainage Dist.

• Decision Date: 15 January 1960
• Docket Number: No. 34614,STANTON-PILGER,34614
• Citation: 100 N.W.2d 781,169 Neb. 594
• Parties: Bert ARMBRUSTER and Irene Armbruster, husband and wife, Appellants-Cross-Appellees, v.DRAINAGE DISTRICT, Appellee-Cross-Appellant.
• Court: Nebraska Supreme Court

Page 781

100 N.W.2d 781

169 Neb. 594

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

No. 34614.

Supreme Court of Nebraska.

Jan. 15, 1960.

Syllabus by the Court

1. When this court determines the law of the case on appeal, the trial court is bound thereby and its judgment in accordance therewith will not ordinarily be disturbed on a subsequent appeal.

2. Generally, however, if other and different issues of fact and of law relating thereto have been properly adduced and presented in a new trial, the law of the case is not controlling thereof in a subsequent appeal.

3. The method of financing improvements and repairs of a drainage system and the plans for accomplishing the result are ordinarily within the discretion of the board of supervisors of the district, but it must act, and its acts must be commensurate with its legal duty.

4. When land is taken outside the boundaries of the right-of-way condemned, it constitutes a second taking of private property for a public use and liability attaches therefor under Article I, section 21, of the Constitution.

5. A party seeking an injunction must establish by competent evidence every controverted fact necessary to entitle it to relief and an injunction will not lie unless the right is clear, the damage is irreparable, and a remedy at law is inadequate to prevent a failure of justice.

6. Acts which destroy or result in a serious change of property either physically or in the character in which it has been held or enjoyed have been held to do an irreparable injury.

7. Ordinarily where an injury wrongfully committed by one against another is continuous or is being constantly repeated so that complainant's remedy at law requires the bringing of successive actions, that remedy is inadequate and the injury will be prevented by injunction.

8. In such cases, equity looks to the nature of the injury inflicted, together with the fact of its constant repetition or continuation, rather than to the magnitude of the damages inflicted, as the ground of affording relief.

9. The measure of damages for land taken for public use is the fair and reasonable market value of the land actually appropriated and the difference in the fair and reasonable market value of the remainder of the land before and after the taking.

10. Everything which affects the market value is to be taken into consideration. The burden of additional fencing, and like matters, are to be included, not by being added together item by item, but to the extent that, taken as a whole, they detract from the market value of the property.

11. In a suit to recover damages under the constitutional provision for damages to property for public use, it is immaterial whether the petition states a cause of action ex delicto or ex contractu. If the fact is established that property has been damaged for public use, the owner is entitled to compensation.

12. In fixing the damages sustained by a landowner in consequence of the appropriation, or injury, of his property for a public use, every nonspeculative element of annoyance and disadvantage resulting from the improvement which would influence an intending purchaser's estimate of the market value of such property may be taken into account.

13. A party may not properly base a claim of estoppel in his favor on his own wrongful act or dereliction of duty, or on acts or omissions induced by his own conduct, concealment, or representations.

14. There can be no waiver or estoppel unless the person against whom it is claimed had full knowledge of his rights and of facts which will enable him to take effectual action for their enforcement. No one can acquiesce in a wrong while ignorant that it has been committed, and that the effect of his action will be to confirm it.

15. General words in a release are ordinarily sufficient to bar a claim which had accrued at the date of the execution of the release, or a claim known to exist by the party signing it.

16. However, when the amount received in settlement is grossly inadequate to compensate for the injuries sustained, that fact may be considered, with other evidence, as tending to show unfair practice, that the party has been overreached, and that the minds of the parties never met in consummation of a valid contract.

17. Also, even where parties fairly and honestly intend to settle their controversy for known injuries received, but there are injuries wholly unknown to the parties, of a serious character, which are not taken into consideration, a release given in settlement of the injuries, although purporting to be a release of all damages that may thereafter accrue, will be set aside on the ground of mutual mistake, as inequitable, unjust, and not complying with the intention of the parties.

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.

CHAPPELL, Justice.

This case is here on appeal a second time. Our former opinion is reported as Armbruster v. Stanton-Pilger Drainage Dist., 165 Neb. 459, 86 N.W.2d 56. Therein plaintiffs, Bert Armbruster and Irene Armbruster, his wife, appealed, and we reversed the judgment of the trial court which had dismissed plaintiffs' amended and supplemental petition on motion of defendant, Stanton-Pilger Drainage District, at conclusion of plaintiff's case. We then remanded the cause for new trial. Plaintiffs' action sought a mandatory injunction and damages against defendant. Hereinafter, when referring to Bert Armbruster alone he will be called plaintiff, and when referring to both plaintiffs, they will be so designated.

Except on the issues of plaintiffs' alleged release of their claim for damages and their alleged estoppel to claim the same, this appeal will be considered in the light of the applicable and controlling rules appearing in Snyder v. Lincoln, 156 Neb. 190, 55 N.W.2d 614, which held that: 'When this court determines the law of the case on appeal, the trial court is bound thereby and its judgment in accordance therewith will not ordinarily be disturbed on a subsequent appeal.' Generally, however, if other and different issues of fact and of law relating thereto have been properly adduced and presented in a new trial, the law of the case is not controlling thereof in a subsequent appeal. It would serve no useful purpose here to restate the determined rules of law which appear in our first opinion as syllabus points 2 to 8 inclusive. The entire record, including all evidence adduced by plaintiffs at the first trial together with all evidence adduced by the parties at the new trial, is now before this court for consideration.

To clarify the situation, we point out this this case involved the alleged interference with and diversion by defendant of waters flowing in a small natural stream known as Cedar Creek, hereinafter called the creek, which caused damages to plaintiffs' land by erosion of said creek. In that connection, it is undisputed that prior, during, and subsequent to 1950, plaintiffs were joint owners of the north half of a described section of land in Stanton County. Prior to 1950, the creek entered plaintiffs' land from the south at a point near the southeast corner, then flowed 3,960 feet north and northwest, then left plaintiffs' land at their north line under a county bridge which spanned the creek on an east and west county road, thence flowed on north over land of another and emptied into the Elkhorn River, which flowed generally from east to west in a meandering course about 2,200 feet north of plaintiffs' north line.

It was stipulated as follows: That a petition to form defendant district under the provisions of sections 31-401 to 31-450, R.R.S.1943, inclusive, was filed August 19, 1949. It was signed by 12 named persons other than plaintiffs. The same day a statutory bond was filed which was signed by all such named persons except one. On October 11, 1949, five named directors other than plaintiffs were elected, who all continued to serve defendant as such for more than 5 years thereafter. On October 24, 1949, such directors instructed defendant's engineer, theretofore employed by them, to prepare detailed plans, specifications, and cost estimates for the construction of a pilot channel, hereafter called ditch, with which to straighten the channel of the Elkhorn River. On February 9, 1950, such plans, specifications, and cost estimates were presented to defendant's directors, who approved and adopted a proposed plan which provided for the construction of a ditch 34 feet wide at the top, 24 feet wide at the bottom, and 10 feet deep, with a right-of-way 100 feet wide on each side, and such plans were left at all times thereafter in the custody of defendant's lawyer. In that connection, it is undisputed that no part of plaintiffs' land was within the boundaries of the district except plaintiffs' described northwest 40 acres, and plaintiffs' land, through which the creek flowed and on which damages directly occurred by erosion, was entirely outside the boundaries of the district.

The record discloses that in 1950 defendant constructed the ditch over right-of-way acquired by it for the purpose of straightening the Elkhorn River channel and to provide for the passage of waters which would otherwise have flowed through the old Elkhorn River channel. The ditch was constructed from west to east and then from east to west unit it intersected or cut across the channel of the creek on land of another about 990 feet north of plaintiffs' north line. The ditch, which was completed by defendant in November or December 1950, was cut about 6 feet below the base or bed of Cedar Creek and the Elkhorn River, which created a waterfall 6 feet high where defendant's ditch intersected the creek, and the water therefrom emptied into the ditch. The...