Cover v. Platte Val. Public Power and Irr. Dist.

Decision Date16 March 1956
Docket NumberNo. 33807,33807
Citation162 Neb. 146,75 N.W.2d 661
PartiesNoel COVER, Appellant, v. PLATTE VALLEY PUBLIC POWER AND IRRIGATION DISTRICT, a Public Corporation, Appellee.
CourtNebraska Supreme Court

Syllabus by the Court.

1. It is the duty of those who build structures across natural drainways to provide for the natural passage through such obstruction of all waters which may be reasonably anticipated to drain there, and this is a continuing duty.

2. After an easement to drain across the lands of another has been legally acquired it is limited both as to extent and nature to the terms of the original grant.

3. The rule is that if the grant of an easement or reservation is specific in its terms, it is decisive of the limits of the easement.

4. Where cases are interwoven and interdependent and the controversy involved has already been considered and determined by the court in former proceedings involving one of the parties now before it, the court has the right and should examine its own records and take judicial notice of its own proceedings and judgments in the former action. Such cases are exceptions to the general rule warranted from the necessity of giving effect to former holdings which finally decide questions of fact and law.

5. In order for a flood to come within the term act of God, it must have been so unusual and extraordinary a manifestation of nature as could not under normal conditions have been reasonably anticipated or expected.

6. Although a rainfall may be more than ordinary, yet, if it be such as has occasionally occurred at irregular intervals, it is to be presumed that it may occur again, and a party engaged in public work, the construction of which involves change or restraint of the flow of waters in a natural drainway, is negligent if such party fails to make reasonable provision for the consequences that will result from such extraordinary rainfalls as experience shows are likely to occur.

7. An act of God does not necessarily mean an operation of natural forces so violent and unexpected that no human foresight or skill could possibly have prevented its effect. It is enough that the flooding shoudl be such as human foresight could not be reasonably expected to anticipate and whether it comes within this description is ordinarily a question of fact.

8. An act of God must be the sole proximate cause of damages about which plaintiff complained without concurrent negligent participation of defendant, and in order for defendant to recover a verdict, he has the burden of proving such an alleged defense by a preponderance of the evidence.

9. Where an act of God and the negligence of defendant concur in proximately causing damages, the defendant is liable as though the damages had been caused by his negligence alone.

10. Where an instruction assumes to define the whole law of the case but omits a material element therefrom, it is reversible error which may be relied upon although no proper instruction has been requested by the party seeking to take advantage of the defect.

11. An instruction which conflicts with propositions of law properly and correctly stated in another instruction in the same charge on a vital issue of fact, and tends to mislead or confuse the jury in deliberating on conflicting evidence, is erroneous and prejudicial.

12. It is the duty of the trial court, without request, to instruct the jury on each issue presented by the pleadings and supported by evidence. A litigant is entitled to have the jury instructed as to his theory of the case as shown by pleadings and evidence, and a failure to do so is prejudicial.

13. Paragraph 3 of the syllabus promulgated in Gable v. Pathfinder Irr. Dist., 159 Neb. 778, 68 N.W.2d 500, and so much of that opinion as seemingly approved same, is hereby overruled and withdrawn.

Baskins & Baskins, North Platte, for appellant.

Crosby, Crosby & Nielsen, North Platte, W. A. Stewart, Lexington, for appellee.

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

CHAPPELL, Justice.

Plaintiff Noel Cover, in his own right and as assignee of Armour and Company, brought this action to recover for flood damages to their described personal property alleged to have been proximately caused by negligence of defendant, Platte Valley Public Power and Irrigation District, in the construction and maintenance of a floodwater drain under its canal. Defendant's answer denied that it was negligent as claimed by plaintiff and alleged in effect that the sole proximate cause of any damages sustained by plaintiff was an act of God. Further, it alleged that in any event plaintiff was barred and estopped from proving or recovering any damages from defendant in his own right because with full knowledge of its underpass drain plaintiff had entered into a contract to purchase from defendant the south 60 acres located in the northwest quarter and that part of the southwest quarter of Section 9 lying just north of defendant's canal, whereby plaintiff allegedly consented and agreed that the then existing underpass or drain could be maintained by defendant in its then condition and that plaintiff Cover would save defendant harmless from any damages caused thereby. Such lands will be hereinafter designated as the 60-acre tract. Plaintiff's reply was a general denial.

Upon trial to a jury, the trial court held as a matter of law that under the provisions of the contract aforesaid, plaintiff Noel Cover could not recover any damages in his own right. Instruction No. 10 given by the trial court so informed the jury, and only the issue of plaintiff's right as assignee of Armour and Company's alleged damages to its interest in the personal property was submitted to the jury. In that regard, concededly Noel Cover and Armour and Company had been contractually engaged in a large sheep feeding and marketing venture whereby Cover was to receive 30 percent of the profits and be liable for 30 percent of the losses, which in any event should not exceed $25,000 in any one year, while Armour and Company was to receive 70 percent of the profits and be liable for 70 percent of the losses. However, Armour and Company had concededly assigned to plaintiff all of its rights interests, claims, and demands against defendant which it might have by reason of any damages caused by the alleged flooding on or about June 21 and 22, 1947. Therefore, if plaintiff was entitled to recover in his own right he was also entitled to have submitted and recover in one verdict the total amount of the damages sustained without confusing the jury in any manner by requiring it to ascertain any percentage of the loss individually sustained by either Cover or Armour and Company. As the issues were thus submitted, the jury returned a verdict finding for defendant, and judgment was rendered thereon. Subsequently plaintiff's motion for new trial was overruled and he appealed, assigning some 38 errors. Some of them were not argued and they will not be discussed. Those argued may be summarized as assigning: (1) That the trial court erred in holding as a matter of law that plaintiff Cover could not recover in his own right and in so instructing the jury; (2) that the trial court erred in the admission of certain evidence; and (3) that the trial court erred in the giving and refusal to give certain instructions. We sustain the assignments in the manner hereinafter set forth.

The record is voluminous and contains numerous photographs offered and received for the purpose of identifying the place where the flood occurred and the extent thereof. We need only summarize pertinent parts of the evidence as they relate to the assignments of error. The property alleged to have been damaged was some 26,000 sheep, 60 tons of feed, and 3 electric pump motors, all located on the northeast quarter of Section 8, and 220 tons of alfalfa and 1 electric pump motor, all located on the north 100 acres of the northwest quarter of Section 9. Said lands belonged to plaintiff Cover and none of the personal property claimed to have been damaged was located on the 60-acre tract contractually purchased by plaintiff from defendant. Any question with reference to the amount of the damages is not an issue for determination here. It is sufficient for us to say that the extent thereof was not controverted by defendant. Such damages resulted from the flooding of plaintiff's lands on June 21 and 22, 1947, when intersecting floodwaters backed up, completely inundating plaintiff's lands except for a few knolls, which waters failed to escape for several days thereafter.

Admittedly defendant, a public corporation, owned and operated an irrigation canal along the south line of the northeast quarter of Section 8 and extending on eastward along the south line of the 60-acre tract contractually purchased by plaintiff from defendant. In other words, the south side of the 60-acre tract is adjacent to defendant's canal and at about the center thereof defendant had constructed and maintained a 42-inch corrugated drain pipe under its canal for the purpose of draining away all intersecting waters flowing down the Stump Ditch and Spring Creek drainage area from the north and west. Spring Creek is a natural drainway about 5 feet deep and 200 feet wide into which overflow waters from Stump Ditch have been diverted. They drain about 30,000 acres of land, extending over an area of some 20 to 30 miles north and west of the point where Spring Creek was intercepted by defendant's canal. The 42-inch drain has a capacity of only 9.62 square feet which was both factually and as a matter of law inadequate to drain all intersecting waters that might be reasonably anticipated to drain through it. In that regard, such drain is now substantially in the identical condition that it was on January 31, 1947, when this court in Faught v. Platte Valley Public Power & Irr. Dist., 147 Neb. 1032, 25 N.W.2d 889, held that it was not...

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    ...and take judicial notice of its own proceedings and judgments in the former action.' As stated in Cover v. Platte Valley Public Power & Irr. Dist., 162 Neb. 146, 75 N.W.2d 661, 668: 'In the light of such rule plaintiff argued that the trial court erred prejudicially in refusing to examine i......
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