Kendrick v. Furman
| Decision Date | 20 February 1908 |
| Docket Number | 15,044 |
| Citation | 115 N.W. 541,80 Neb. 797 |
| Parties | EUGENE C. KENDRICK ET AL., APPELLEES, v. HOWARD G. FURMAN, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Dawes county: WILLIAM H WESTOVER, JUDGE. Reversed in part.
Judgment reversed in part and remanded, and affirmed in part.
A. W Crites, for appellant.
J. E Porter, contra.
This was an action brought to the district court for Dawes county by appellees for an injunction and judgment for damages against appellant. It seems that A. J. Palmer and another in 1887 acquired title to a tract of land bisected by the Niobrara river. In 1892 and 1893 Palmer constructed an irrigation plant and water power mill upon his land, so as to receive the water from the said river to supply both his power for the mill and water for his ditches. The state board of irrigation in 1898 made an order stating that Palmer & Company were entitled to seven and one-seventh cubic feet of water a second for irrigation purposes, dating by way of priority from August 1, 1887, and to 10 cubic feet a second of water for power purposes from August 1, 1893. Appellant owns land on each side of the Niobrara, and just immediately east of and below the land owned by Palmer. In January, 1894, appellant posted a notice of his proposed diversion of the water of said river for irrigation purposes, filed a copy thereof with the county clerk in February following, and on the 2d day of January, 1895, filed his claim with the state board of irrigation, which board thereafter passed upon and allowed said claim to the extent of three and nine-fourteenths cubic feet of water a second of time. In the spring of 1894 appellant and said Palmer conferred about the construction of a dam to enable appellant to divert water for an irrigation system. Palmer desired that the dam be constructed above the outlet of his (Palmer's) tailrace, but appellant refused, for the admitted reason that he wanted the dam and head gate on his own land, and further desired the benefit of the water returned to the river through Palmer's tailrace. Appellant then selected a site, and requested Palmer to survey for the ditches, dam and head gate. This point, following the thread of the stream, was about one-half mile below the mill, but in a direct course was considerably less. It seems to have been the mutual desire of appellant and Palmer that the dam be so constructed as not to interfere with the operation of the mill. The water for the mill was diverted something over a mile above the mill site, and was conducted thereto in a ditch or race so constructed that at the mill a very considerable fall was produced by permitting the water to flow down, upon, and over a turbine wheel, and thence through a draft tube to the tailrace, whence it escaped back to the river. The water-wheel was firmly attached to a shaft upon which a belt-wheel was affixed. On the ground at the head of the tailrace, under the penstock, was a platform foundation of timber, the floor of which was 12 inches higher than the bed, and this floor seems to have been the initial point from which Palmer took his levels in surveying for appellant's dam. It was apprehended by Palmer that the dam constructed below his mill would back the water up so that, instead of the waste water flowing free from the water-wheel, and thence into the river through the tailrace, it would be retarded in its flow, back up and collect so as to interfere with the action of the water and the pulley-wheel. Palmer then, so he claims, indicated a level to which appellant might raise his dam and still leave a fall of 18 inches from the initial point to the top of the water flowing over the dam, which Palmer deemed sufficient. The dam, ditches and head gate were constructed, and for a time the mill was operated without interference from backwater or ice. In 1890 appellees purchased the mill, irrigation and other water rights from Palmer, and it is claimed by appellees that subsequently thereto appellant raised his dam, and in consequence thereof the waters of the river were backed up so that they submerged the lower part of the water-wheel and pulley, caused the belt to slip, interfered with the free discharge of the water through the draft tube and tailrace, and brought about such a condition as that the mill could not be operated. Furman denied raising his dam to a greater height than indicated by Palmer's survey, and claims that he has a license from Palmer, which is binding on appellees, to maintain the dam in the situation it was at the time the suit was commenced. He also claims that the piling of a wagon bridge constructed across the river at a point between the water wheel and the dam, the existence of a bend in the river, and the washing down from the canyons of debris into the river just above the bridge, caused the condition now existing. The cause was submitted to a jury, which returned a general verdict for the appellees, awarding them $ 250 damages. Ten special findings were returned, and thereafter the court made special findings upon which it entered an injunction perpetually restraining appellant from maintaining the top of his dam to a greater height than 18 inches below the top of the floor of appellees' penstock. Judgment was rendered on the verdict, and Furman appeals.
1. Upon the trial to the jury, the witness Hazard, over appellant's objections, was permitted to answer the question: "Now, what causes this sand, if you know, Mr. Hazard, to back up there?" He answered: "Well, there is only one thing I could reasonably account for; that is, the dam preventing the flow of the water carrying the sand off." The witness Poole, over appellant's objections, was permitted to answer the question: "Now, do you know what caused this water to back up this way?" He said: "From Mr. Furman's dam." The questions include the very substance of the issue to be determined by the jurors, and the acceptance by them of those answers relieved the jurors from ascertaining from competent evidence the very fact at issue in the case. The testimony invaded the province of the jury, and should not have been permitted. Combs v. Agricultural Ditch Co., 17 Colo. 146, 28 P. 966; In re Estate of Cheney, 78 Neb. 274, 110 N.W. 731.
Over appellant's objection, one of the appellees was permitted to answer the question: "Now, you may tell the jury what damage you have suffered by reason of this water being backed up the way you have described during these three years?" The response was: Appellant moved to strike out the answer as incompetent, irrelevant, immaterial, remote and speculative. The court sustained the motion only as to the loss of the cattle. Further in the witness' examination he was permitted to say appellees had suffered damage by reason of the water submerging the public road and the land between their house and the road, and, further, over objections as to competency, materiality and relevancy, he was permitted to answer the question: "Now, in what way did you suffer damages?" And in answer said: "We had the school teacher boarding there, and from time to time we had to carry her across so she could go to school." Appellant moved to strike out the answer as not a proper measure of damages, which was...
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