Keim v. Downing

• Decision Date: 24 July 1953
• Docket Number: No. 33313,33313
• Citation: 59 N.W.2d 602,157 Neb. 481
• Parties: KEIM et al. v. DOWNING et al.
• Court: Nebraska Supreme Court

Page 602

59 N.W.2d 602

157 Neb. 481

KEIM et al. v. DOWNING et al.

No. 33313.

Supreme Court of Nebraska.

July 24, 1953.

Syllabus by the Court.

1. It is the duty of this court in an equity case to try the issues de novo and to reach an independent decision without being influenced by the findings of the trial court except if the evidence is in irreconcilable conflict this court may consider that the trial court saw the witnesses, observed their manner of testifying, and accepted one version of the facts rather than the opposite.

2. This court may in an equity case give proper consideration to the fact that the trial court inspected the premises and the physical matters involved and that its examination thereof constituted evidence because the relevant facts observed necessarily affected the mind of the court and tended to influence belief or unbelief on the matters at issue in the case.

3. Surface water is a common enemy and an owner of real estate may fight it as his judgment dictates, but he may not accumulate it in a drain, increase the flow, and discharge it on a servient estate or divert it in a different direction to the damage of a lower estate.

4. An oral arrangement for the construction and maintenance of a ditch and a graded road, serving as an embankment, in connection with drainage of land is valid and irrevocable if it has been accepted, executed, and used to advantage by the parties.

5. A parol grant of an easement or license like any other contract may rest in implication.

Max Kier, Lincoln, for appellants.

C. J. Campbell and Fraizer & Fraizer, Lincoln, for appellees.

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

BOSLAUGH, Justice.

Appellants brought this action against appellees to restrain them from having and maintaining a private road and ditch which appellants alleged obstructed and diverted the natural flow of surface waters from their land in such a manner as to throw the water back onto it to their damage; and that the surface waters, except for the obstruction and diversion would in the natural course of drainage have gone from the land of appellants onto and across the land of appellees. Appellants also sought to recover damages for injuries to their land because of the obstruction and diversion of the surface waters by appellees. Appellees denied the claims of appellants, and alleged that the road and ditch complained of by appellants were constructed and maintained by virtue of an agreement between the parties; that for many years appellants had used the drainage provided by the ditch; that they had accepted the benefits of the better drainage of their land afforded by the road and the ditch; that by word and conduct they granted an easement or irrevocable license for the maintenance of the ditch and road; and that they were estopped to have them removed or to recover damages.

The district court found against appellants on their causes of action, in their favor on the cause of action alleged by appellees in their counterclaim for damages, dismissed the case, and denied the motion of appellants for a new trial.

The decision of this case is controlled by the determination of questions of fact. This is an equity case. The evidence is conflicting and in many important respects irreconcilable. The trial court made an inspection of the premises and physical matters involved. The manner of conducting a trial in this court in this situation has been firmly established. It is the duty of the court to try the issues de novo and to reach an independent conclusion without being influenced by the findings of the district court except to the extent the evidence is in irreconcilable conflict, and as to that the court may consider the fact that the trial court saw the witnesses, observed their manner of testifying, and accepted one version of the facts rather than the opposite. Likewise this court may and should give proper consideration to the fact that the trial court inspected the premises and the physical matters involved, and that its examination constituted evidence because the relevant facts observed necessarily affected the mind of the trial court and tended to influence belief or unbelief on the matters at issue in the case. Probert v. Grint, 148 Neb. 666, 28 N.W.2d 548; Birdwood Irrigation Dist. v. Brodbeck, 148 Neb. 824, 29 N.W.2d 621; Jack v. Teegarden, 151 Neb. 309, 37 N.W.2d 387; Schomberg v. Kuther, 153 Neb. 413, 45 N.W.2d 129.

Appellants were the owners of the northeast quarter and appellees were the owners of the southeast quarter and the east half of the southwest quarter of Section 23, Township 11 North, Range 7 East of the 6th P.M. in Lancaster County. Appellants asserted that the southeast quarter of the section was first bottom land near Salt Creek and was servient to drainage from their land; that the natural drainage of surface and flood waters from the west and northwest of their land flowed through natural drainage courses onto and across it; and that from time immemorial have so flowed from the north and west in a southeasterly direction to, on and across the land of appellees and into Salt Creek. Appellees denied the assertions of appellants and alleged that the drainage of surface waters upon the land of appellants from the northwest and from higher land to the west entered near the northwest corner of their land; that the waters were diffused and followed a natural grade in a southeasterly direction over and across the land of appellants to the southeast portion thereof and from there onto the public highway to the east, except a part of the waters remained in a swampy depression in the southeast corner of the land of appellants; and that in the natural course of drainage none of the said surface waters came to or entered upon the land of appellees.

In the primitive state of the area important to this litigation there was a drain from the northwest that entered the land of appellants near its northwest corner and extended into the land towards the south and slightly towards the east for about 600 feet. There was another drain that crossed the section line about 30 rods west of the one above mentioned. It came from the northwest, but more from the west than the north, and entered the land of appellants about 30 rods south of the northwest corner thereof and continued in a southeasterly direction until it joined the first draw about 600 feet from the north line of the land. The drain formed by the confluence of the two draws extended in an irregular course slightly towards the southeast until it was about midway of the land of appellants from north to south; and it then flattened out and substantially disappeared.

The draws, after a road was opened on the section line, had bridges over them. The east one was 12 feet long and the waterway below the stringers of the bridge was about 5 feet in depth. The bridge over the west draw was 8 feet long and the depth of the waterway was about 4 feet. The area drained by them was not less than a section of land. The combined area of the waterway under the bridges was between 80 and 90 square feet. It was many times insufficient to contain all the water flowing through the draws and overflow of the bridges and road was not unusual.

At the place where the drain lost its identity as above indicated the surface water passing through it spread out over the land. It became and was diffused surface water. When it was sufficient in volume to flow across and off of the land of appellants it crossed the east line near to and north of the southeast corner into, across the highway, and thereafter followed a northerly and northeasterly course about parallel with Salt Creek for a mile or more and finally entered Salt Creek.

The allegations of appellants that the land of appellees was servient to drainage from land of appellants and that the natural drainage of surface and flood waters from the north and west of and from their land was in a southeasterly direction across the land of appellees and thence into Salt Creek are contrary to the evidence. The finding is that in the natural course of drainage the waters referred to above did not come to, enter upon, or burden the land of appellees.

It was stated in the petition that appellees went upon the land of appellants and excavated a ditch...