Jack v. Teegarden

• Decision Date: 03 May 1949
• Docket Number: 32538.
• Citation: 37 N.W.2d 387,151 Neb. 309
• Parties: JACK v. TEEGARDEN.
• Court: Nebraska Supreme Court

37 N.W.2d 387

151 Neb. 309

JACK v. TEEGARDEN.

No. 32538.

Supreme Court of Nebraska

May 3, 1949

[Copyrighted Material Omitted]

Syllabus by the Court

1. The right of an appellee in an action to have reviewed a portion of a judgment or decree against him depends upon whether or not he has perfected a cross-appeal and has assigned error in relation thereto agreeable to the provisions of statute and the rules of this court.

2. Surface water is that which is diffused over the surface of the ground, derived from falling rains or melting snows, and continues to be such until it reaches some well-defined channel in which it is accustomed to and does flow with other waters, whether derived from the surface or springs, and it then becomes the running water of a stream and ceases to be surface water.

3. A watercourse is generally defined as a stream of water with a well-defined existence which makes it valuable to the riparian owners along its course. To such streams riparian rights attach.

4. Where an artificial channel is substituted for the natural channel of a stream, or created in such circumstances as indicate that it is designed to be permanent, riparian rights may attach to it.

5. Water flowing in a well-defined watercourse may not lawfully be diverted and cast upon the lands of an adjoining landowner where it was not wont to run according to natural drainage.

6. For such injury injunction is a proper remedy and an injured party may recover such damages in the same action as he may have sustained by such wrongful.

Lloyd E. Peterson, of Nebraska City, and Betty J. Peterson Sharp of Philadelphia, Pa., for appellant.

Armstrong & McKnight, of Auburn, for appellee.

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

WENKE Justice.

William D Jack brought this action in the district court for Nemaha County against J. H. Teegarden. The purpose of the action is to require defendant to remove obstructions from and restore a watercourse on his lands to a sufficient capacity to carry the water that naturally flows therein, to lower or remove a dike constructed thereon just west of the ditch so that it is no higher than the leval of his land, and to permanently enjoin the defendant from again either blocking the watercourse or building a dike. In addition to this injunctive relief plaintiff asked for damages in the sum of $300.

The court found generally for the plaintiff and entered its decree directing the defendant to remove the obstructions from the ditch so as to provide therein a carrying capacity for drainage of waters of 36 square feet and to continue to maintain it, free of obstruction, at substantially that capacity. Plaintiff was denied any recovery for damages.

From the overruling of his motion for new trial the defendant appealed. Plaintiff did not cross-appeal from the disallowance of his claim for damages; consequently, that issue is not here for our consideration.

'The right of an appellee in an action to have reviewed a portion of a judgment or decree against him depends upon whether or not he has perfected a cross-appeal and has assigned error in relation thereto agreeable to the provisions of statute and the rules of this court.' Bastian v. Weber, 150 Neb. 709, 35 N.W.2d 791.

On February 8, 1949, pending appeal but before submission, the appellant died but the action has been revived in the name of R. C. Teegarden, administrator c. t. a. of his estate.

Appellee owns the east half and the appellant the west half of the northeast quarter of Section 10, Township 6, Range 13, in Nemaha County. These eighty-acre tracts will be herein referred to as the Jack land and the Teegarden land.

North of this land is an area of some 160 to 200 acres which drains to the south and southwest. Originally this drainage area also included some 12 to 15 acres in the northwest corner of the Jack land. It all drained south and southwest onto the Teegarden land.

The balance of the Jack land is drained by a swale, which enters it from the east. This swale drains to the south and southwest, leaving the Jack land at the extreme southwest corner. There it enters the continuation or extension of the watercourse hereinafter referred to as extending along the entire east edge of the Teegarden land.

A county road was opened and graded along the north side of this land. The record does not show when this was done. This road caused the water draining from the area to the north to collect against it. As it did so that which collected east of where the bridge was built in the road flowed toward the west and that which collected west thereof flowed toward the east. To permit this water to escape the county built the bridge already referred to. This bridge was located at a point in the road just north of the division line between these two eighties. It was a 10-foot bridge with an 8 by 4 1/2 foot opening thereunder. The west end thereof is immediately north of the division line between these tracts of land, if extended.

To prevent this water from running onto the Teegarden land, as it would naturally have done, the owners of the Teegarden land built a channel or ditch along the entire east side thereof, throwing the dirt therefrom on the west bank. This ditch was admittedly dug as long as 18 years ago but appears to have been put in sometime before 1912. It developed a channel from 10 to 15 feet wide and from 3 to 5 feet deep with an average capacity of about 36 square feet. This channel continues to the south and west, after leaving the Teegarden land, until it empties into the Little Nemaha River.

At the extreme north end, for some 50 to 100 feet, the channel of this ditch slants slightly to the east and partially onto the Jack land. This was apparently done so that the ditch would properly approach the opening of the bridge.

The evidence shows that in 1940 appellee's agent paid $11.83 or one-half the cost of cleaning out this ditch. It had been cleaned out in 1939. The evidence also shows that in 1945 appellee's agent made a tender of $10 for the same purpose, that is, to pay for some work done in cleaning out the ditch that year. However, the evidence does not establish any agreement between appellee, or his agents, and appellant relating to the construction or maintenance of this ditch.

This ditch on the Teegarden land continued in full use and operation until June 1947. In the spring of that year appellant caused to be cut a 10 to 12 foot hedge that was growing along the ditch between it and the division fence. The brush resulting therefrom was thrown in and along the bank of the ditch and also between it and the division fence. At about the same time appellant built a high dike on his land just west of the ditch. The top of this dike was about 2 feet higher than the Jack land and about 5 feet higher than the bottom of the ditch. It extended for the full length of the ditch and also about half way across the Teegarden eighty to the west along the north side.

A heavy rain in June 1947 washed silt and debris on top of this brush. This caused the channel of the stream to fill up so its depth was not over a foot. As a result the water flowing in the channel raised, and the dike preventing it from flowing on the Teegarden land, where it would naturally flow, it spread out over the Jack land and did substantial damage to it. Appellant thereafter burned the brush that had not been covered by the silt and debris. He also attempted to remove what was in the ditch but was not successful in doing so. As a result the ditch remains filled with the silt and debris which was deposited there in June 1947.

The evidence shows that the carrying capacity of the ditch, because of the fill, is now not over 12 square feet; that, under conditions normally to be expected, it should have a carrying capacity of at least 36 square feet in order to be able to carry the water coming through the bridge from the drainage area to the north; that before and fill it had sufficient capacity to do so; and that if permitted to remain in its present condition that with every heavy rain, because of the reduced capacity of the channel and the construction of the dike, the Jack land will be seriously damaged by recurring floods. It is against this condition that appellee seeks relief. After personally inspecting the premises the trial court granted the relief.

Applicable here is the following from Probert v. Grint, 148 Neb. 666, 28 N.W.2d 548, 557: "When an action in equity is appealed it is the duty of this court to try the issues do novo and to reach an independent conclusion without reference to the findings of the district court. Comp. St.1929, § 20-1925 (this section being now 25-1925, R.S.1943). But in a case wherein the trial court has made a personal examination of the physical facts, and where, in the same case, the oral evidence in respect of material issues is so conflicting that it cannot be reconciled, this court will consider the fact that such examination was made and that such court observed the witnesses and their manner of...