Boschulte v. Elkhorn River Drainage District

• Decision Date: 04 May 1918
• Docket Number: 19946
• Citation: 167 N.W. 730,102 Neb. 451
• Parties: CHARLES BOSCHULTE, APPELLANT, v. ELKHORN RIVER DRAINAGE DISTRICT, APPELLEE
• Court: Nebraska Supreme Court

167 N.W. 730

102 Neb. 451

CHARLES BOSCHULTE, APPELLANT, v. ELKHORN RIVER DRAINAGE DISTRICT, APPELLEE

No. 19946

Supreme Court of Nebraska

May 4, 1918

APPEAL from the district court for Dodge county: FREDERICK W BUTTON, JUDGE. Affirmed.

AFFIRMED.

W. M Cain and N. H. Mapes, for appellant.

Courtright Sidner & Lee, contra.

OPINION

SEDGWICK, J.

The plaintiff brought this action in the district court for Dodge county for an injunction and to recover damages alleged to have been caused by the construction of the defendant's drainage ditch. The case was tried to the court without a jury, and the court denied the injunction, but found that the plaintiff's damage was $ 300, for which judgment was entered, and the plaintiff, not satisfied with these findings and this judgment, appealed to this court.

It appears that the Elkhorn river flows through Dodge and Washington counties, and when the defendant drainage district was about to construct its ditch in 1909 its plans contemplated the excavation of several considerable cuts with a view to straightening the course of the river. Pursuant to this plan, it purchased from the plaintiff a right of way across part of his land, and plaintiff executed to the defendant his deed conveying a strip of land 200 feet wide across certain lands of the plaintiff, amounting to about nine acres, for which the defendant paid the plaintiff the sum of $ 900, being about $ 100 an acre for the land so purchased. The deed contained the stipulation that "said land is to be used perpetually according to the present or future plans of said drainage district, its successors and assigns for drainage purposes." It is conceded that the plans for the construction of the ditch through the land so purchased had been made and were accessible to the parties at the time of entering into the contract to purchase the right of way, and that these plans contemplated that this excavation would not be made of sufficient width to carry the whole flow of the river; that the then existing course of the river should not be interfered with; and that reliance was to be placed upon the probability that the water of the river finding a more direct channel through this ditch would, by erosion, enlarge the ditch, and perhaps finally furnish a sufficient channel for the whole stream. But the plaintiff alleges "that defendant was careless and negligent in the construction of said ditch, in that defendant made the same too narrow and too shallow and insufficient to receive take and carry the waters of said Elkhorn river; that defendant negligently and without due care made said ditch of a width of less than forty (40) feet on top and only about ten (10) feet wide at the bottom." It seems to be conceded that the Elkhorn river, for some distance both above and below this land in question, is a very crooked stream and subject to excessive flood waters at various times, and by erosion has frequently changed its channel at various places. In crossing the plaintiff's land the channel of the river was very crooked; it appeared to both parties very desirable to have its course straightened; and the deed provides that the grantor will "release all damages and claims thereto on account of and by reason of the occupancy and use of said land." What the result would be was more or less of an experiment, but the parties to the deed appear to have anticipated beneficial results. This release of damages, of course, was predicated upon the assumption that the work would be properly done in reasonable compliance with the plans and specifications, and the defendant would be liable for any damage caused by its negligence in the construction...