Kearney Canal & Water Supply Company v. Akeyson

• Decision Date: 22 June 1895
• Docket Number: 6220
• Citation: 63 N.W. 921,45 Neb. 635
• Parties: KEARNEY CANAL & WATER SUPPLY COMPANY v. OLAFF AKEYSON
• Court: Nebraska Supreme Court

63 N.W. 921

45 Neb. 635

KEARNEY CANAL & WATER SUPPLY COMPANY v. OLAFF AKEYSON

No. 6220

Supreme Court of Nebraska

June 22, 1895

ERROR from the district court of Buffalo county. Tried below before HOLCOMB, J.

AFFIRMED.

Marston & Nevius, for plaintiff in error.

Greene & Hostetler, contra.

OPINION

RAGAN, C.

Olaff Akeyson brought this suit in the district court of Buffalo county against the Kearney Canal & Water Supply Company (hereinafter called the "Canal Company"). The Canal Company is a corporation organized under the laws of the state, and had constructed, owns, and at the time of the occurrence of the events of which this suit arose was operating, a canal from the Platte river to the city of Kearney. The canal tapped the Platte river some twelve miles west and southwest of the city of Kearney, and thence passed along in a northeasterly direction, leaving the lands of Akeyson about one and one-half miles south of the canal. The action of Akeyson was to recover damages which he alleged he had sustained by waters overflowing from this canal, running on his land, and destroying his crops. He had a verdict and judgment and the Canal Company has prosecuted to this court a petition in error.

1. The first assignment of error is that the verdict of the jury is not supported by sufficient evidence. We think it is. The evidence is practically undisputed that the waters overflowed from this canal and damaged Akeyson's crops. But it is argued that the evidence fails to show this resulted from the negligence of the Canal Company. The record does not show just how the canal was constructed nor how it was operated; but it does show that west of Akeyson's farm the canal crossed a little stream called Beaver creek, and was constructed across the entire water-shed of Beaver creek; that Akeyson's land lies in this water-shed of Beaver creek, and that the canal was constructed of sufficient capacity to carry away one-third of the surface water resulting from rains and melting snows on this Beaver creek water-shed; and it is inferable at least from the evidence that the entire water-shed of Beaver creek slopes to the south and east towards the Platte river. The negligence charged by Akeyson to the Canal Company was that it had failed to carefully keep and maintain its canal and embankments in good repair and condition, and by reason of the insufficiency of the embankments, large quantities of water ran through and over said banks, and was carried down and discharged in a volume on Akeyson's lands. The evidence is practically undisputed that prior to the construction of this canal these lands of Akeyson's had never been overflowed, but that after the construction of the canal they overflowed in 1888, 1889, 1890, and 1891; and the witnesses for the Canal Company themselves testified that a part of the embankment of the canal was washed away; that there never had been but one or two breaks in the canal; that in the year 1891 the farmers cultivated the embankments which lowered them so that the water would flow over more readily. Now from this testimony we think the jury was entirely justified in inferring that the Canal Company had been guilty of negligence in the manner of maintaining the embankments of its canal. A verdict for negligence may be supported by inference, but the inference must be the logical, probable, and reasonable deduction from proved or conceded facts. (Kilpatrick v. Richardson, 40 Neb. 478, 58 N.W. 932.)

2. The second and third assignments of error argued relate to the action of the district court in admitting and rejecting evidence on the trial. We cannot review these assignments for the reason that they are too indefinite. The assignments are: "The court erred...