Lincoln Joint Stock Land Bank v. Platte Valley Public Power and Irrigation District
| Decision Date | 29 July 1941 |
| Docket Number | 31055 |
| Citation | 299 N.W. 485,140 Neb. 316 |
| Parties | LINCOLN JOINT STOCK LAND BANK, APPELLEE, v. PLATTE VALLEY PUBLIC POWER AND IRRIGATION DISTRICT, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Keith county: J. LEONARD TEWELL JUDGE. Reversed.
REVERSED.
Syllabus by the Court.
1. In an action for damages to growing crops alleged to have been caused by seepage resulting from the construction and operation of an irrigation canal, it is necessary to establish a causal relationship between the water in the canal and that causing the seeped condition on plaintiff's lands.
2. Proof which merely leaves the matter to be established in the realm of speculation and conjecture is not sufficient to sustain a judgment.
Appeal from District Court, Keith County; Tewell, Judge.
Action by the Lincoln Joint Stock Land Bank against the Platte Valley Public Power & Irrigation District to recover for damages sustained to growing crops as result of seepage alleged to have been caused by water from the defendant's supply canal. From a judgment in favor of the plaintiff, the defendant appeals.
Judgment reversed, and cause remanded for a new trial.
Shuman & Overcash, for appellant.
Halligan McIntosh & Feltz, contra.
Heard before SIMMONS, C. J., ROSE, EBERLY, PAINE, CARTER, MESSMORE and YEAGER, JJ.
This is an action to recover for damages sustained to growing crops as a result of seepage alleged to have been caused by water from the defendant's supply canal. Plaintiff recovered a judgment for $ 598.82, and defendant appeals.
Plaintiff was the owner, during the times herein mentioned, of two tracts of land lying south of the North Platte river in Keith county. For convenience, the east tract will be referred to as the Lute land and the west tract as the Snyder land. The lands alleged to have been seeped by defendant's supply canal are approximately one-half mile south of the North Platte river. Both seeped areas lie immediately south of the Union Pacific railroad which runs along the south side of the valley until it enters the Snyder land, where it turns north and crosses the North Platte river. A short distance south of the Union Pacific railroad where it crosses the Lute land is an old railroad grade referred to in the evidence as the old Burlington grade. Commencing at a point just north of the Union Pacific railroad as it enters the Snyder land is the beginning of a drainage ditch which parallels the Union Pacific railroad on the north side thereof. This drain is referred to in the evidence as Bull ditch. The Keith-Lincoln county canal crosses the Snyder and Lute lands approximately one-half mile south of the seeped lands here in question. This canal provides irrigation water for the Snyder and Lute lands as well as the lands lying between these two tracts.
With these conditions existing, the defendant constructed a canal about one-half mile to the south of the Keith-Lincoln county canal. This canal was about 40 feet wide at the bottom and 60 feet in width at the top. It was used for the first time in 1935, but ran only a small head of water. Water ran in the canal in 1936 and until February, 1937, when a break in defendant's siphon across the South Platte river occurred and prevented its further use for some time. Damages to crops were claimed for the years 1937 and 1938.
There is evidence in the record that defendant's canal crosses several sand draws. Plaintiff did not show that these sand draws were carrying subterranean waters in the general direction of his seeped lands. An engineer called by the defendant testifies that borings made by him below defendant's canal showed that the earth was dry 15 feet below the surface.
It cannot be questioned that plaintiff's lands are seeped and water-logged. There is evidence in the record that they have always been so low that they have at times become wet. One witness testifies that he had been duck hunting on these lands many times before defendant's canal was built. There is evidence that Bull ditch was constructed to carry away the waters causing this water-logged condition, and that because of a failure to clean Bull ditch, it had filled up with weeds and slime and failed to operate as a drainage ditch. In the opinion of the defendant's engineer, this condition was a contributing factor to the existing condition. The evidence shows that the grade of the irrigable land immediately to the south of the seeped lands was rather steep, so much so that it was difficult to irrigate successfully and that much tail water ran down onto the seeped areas and contributed to the ponding of waters there. It also appears that irrigation from the Keith-Lincoln county canal has been supplemented by pump irrigation which...
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