Myers v. Platte Val. Public Power & Irr. Dist.

• Decision Date: 28 December 1954
• Docket Number: No. 33587,33587
• Citation: 159 Neb. 493,67 N.W.2d 739
• Parties: Clarence MYERS, Appellee, v. PLATTE VALLEY PUBLIC POWER & IRRIGATION DISTRICT, a Public Corporation, Appellant.
• Court: Nebraska Supreme Court

Page 739

67 N.W.2d 739

159 Neb. 493

Clarence MYERS, Appellee, v. PLATTE VALLEY PUBLIC POWER & IRRIGATION DISTRICT, a Public Corporation, Appellant.

No. 33587.

Supreme Court of Nebraska.

Dec. 28, 1954.

Syllabus by the Court.

1. A new trial is to be granted for a legal cause and where it appears that a legal right has been invaded or denied. A new trial is not to be granted for arbitrary, vague, or fanciful reasons.

2. The Supreme Court is not vested with authority by the Constitution or laws of the state to set aside the verdict of a jury, having for its support sufficient competent evidence, even though this court may be of the opinion that had it been the trier of the case, it would have reached a different conclusion.

3. While the trial judge need not give his reason for reaching a decision, the justification of the decision must be one that can be established from the record.

4. Where a party has sustained the burden and expense of a trial and has succeeded in securing the judgment of a jury on the facts in issue, he has a right to keep the benefit of that verdict unless there is prejudicial error in the proceedings by which it was secured.

5. Instructions not complained of in such a way as to be reviewable in this court will be taken as the law of the case, and if, when tested by such instructions, the verdict is not vulnerable to the objections lodged against it, the assignments will not be sustained.

6. It is presumed that a jury followed the instructions given in arriving at its verdict and, unless it affirmatively appears to the contrary, it cannot be said that such instructions were disregarded.

7. Where there is no proper or adequate showing that the verdict of a jury resulted through passion, bias, or prejudice the verdict of the jury will not be disturbed on appeal.

8. When the evidence is conflicting, the verdict of the jury will not be set aside unless it is clearly wrong.

Crosby & Crosby and Jess C. Nielsen, North Platte, for appellant.

Edward E. Carr, North Platte, W. I. Tillinghast, Ogallala, for appellee.

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

MESSMORE, Justice.

The plaintiff brought this action at law in the district court for Keith County to recover damages alleged to have been sustained by the plaintiff caused by seepage water escaping from defendant's canal reaching the plaintiff's land and destroying 12 1/2 acres of wheat during the 1948 crop year, and for continuing damages until the expiration of the school land lease held by the plaintiff which expires in 1959. The defendant filed a written offer prior to the time of trial to confess judgment in the amount of $2,500, which offer was refused and the cause proceeded to trial. The jury returned a verdict in favor of the plaintiff and against the defendant, fixing the amount of plaintiff's recovery in the sum of $1,100. The plaintiff filed a motion for new trial which was sustained by the trial court. From the order of the trial court sustaining the plaintiff's motion for new trial, the defendant perfected appeal to this court.

For convenience we will refer to the parties as they were designated in the district court.

That the defendant, Platte Valley Public Power and Irrigation District, is a public power and irrigation district organized and existing under and by virtue of the laws of the State of Nebraska, and particularly under the provisions of sections 70-601 to 70-679, R.R.S.1943, is admitted.

The record shows that the plaintiff was the owner of a school land lease on the south half of the southwest quarter, and Lots 2 and 3 in Section 8, Township 13, Range 35 West of the 6th P.M., being the lease with the Department of Public Lands and Buildings, No. 653398, which expires January 1, 1959.

The plaintiff's second amended petition, insofar as the same need be considered here, alleged in substance that during 1947, the defendant constructed a canal across the south edge of the above-described real estate, taking part of said land for construction purposes, and during the rainy seasons has been transferring water from the South Platte River through defendant's canal to the place known as the Sutherland reservoir, one of the reservoirs south of Sutherland, in which water for the defendant is stored for the purpose of sealing the banks of said canals and reservoirs; that the canal above referred to was constructed by the defendant upon its right-of-way which was acquired for public use, and that it has maintained, used, and operated the canal in the transferring of water and silt for its use, and in doing so, permitted, during high-water periods, the water to seep out of the canal and damage the crops of the plaintiff; that during June and July 1948, the water seeped out of the canal upon 12 1/2 acres of wheat planted by the plaintiff and destroyed the crop; that the land of the plaintiff had been summer fallowed, and the average wheat grown upon the land and the lands adjoining was 25 bushels to the acre and the same sold for $1.98 a bushel; and that during the year 1948, the plaintiff was damaged in the amount of $618.75. The plaintiff alleged continuing damages for the remainder of the term of the lease in the amount of $5,000.

The defendant's answer denied the allegations of the plaintiff's petition relating to negligence on its part; affirmatively alleged that the area of plaintiff's land as alleged to be overflowed and water logged is low-lying first river bottom land of native hay meadow type and not adaptable to successful cultivation, and is subject to natural seepage and flooding during wet seasons of the year; alleged that any damages claimed to have been sustained by the plaintiff are the result of natural causes; specifically denied the same resulted from the construction, operation, and maintenance of the defendant's diversion canal; and prayed that the plaintiff's petition be dismissed.

The plaintiff's reply to the answer of the defendant was a general denial of the material allegations contained therein save and except such as were admitted in the plaintiff's second amended petition.

The plaintiff testified that he and his son, Lewis Myers, have farmed the land described in the lease since 1943. This land comprises about 20 acres of hay meadow, 40 acres of pasture land, and the rest under cultivation, except for 5 acres used as a cemetery. He first noticed coarseness in the hay in 1948. There were approximately 179 acres in the lease. Some 20 acres had been taken by the defendant for its right-of-way across the south portion of the leased land when the canal was built in 1946. Approximately 14 acres lie to the south of the defendant's right-of-way. The plaintiff first noticed damage to his cultivated land in 1948 to a wheat crop seeded in 1947. He had difficulty with his machinery; it would mire down on a small tract which measured 12 1/2 acres which he could not harvest in 1948. There was no difference in the soil where the crop was destroyed and in the rest of the cultivated land, and he had never before noticed seepage there. He did not harvest the 1948 crop. He has planted the land to crops since and has been unable to harvest it. The area where the seepage occurred has been getting larger. In 1948, the wheat averaged around 30 to 31 bushels an acre, and on the open market was worth $1.98 to $2 a bushel. Following 1948, the hay grew coarse and brought from $12 to $15 a ton, while good hay brought $30 a ton. He had noticed no difference in this respect prior to 1948. He testified that in his opinion the school land lease in 1948 was of the value of $9,000, or $65 an acre, and that the value of the lease in 1948, assuming the damage which he now knows to exist on the land had existed at that time, was in the amount of $4,000.

On cross-examination the plaintiff testified that there was a marked swale running east and west, meandering through his hay meadow just north of his cultivated land; that there was drainage from the hills to the south running in a northerly direction toward the river and onto his meadow land; and that following heavy rains there was a surface runoff that went down into the low places, but it did not stand any length of time. He sold his 1948 hay crop, except certain portions which he fed. He summer fallowed the 12 1/2 acre tract in 1949, and each second year thereafter. He had never seen alkali on his land until the defendant's ditch was constructed. He was cognizant that the Board of Educational Lands and Funds could have reappraised his land from time to time for the purpose of establishing lease rental, and that he paid a rental of 6 percent upon the appraised value, payable semi-annually. He further testified that it costs from $2.50 to $3 an acre to harvest wheat, and it cost him as much to harvest his wheat with the 12 1/2 acres out as though he had harvested his entire acreage, due to the fact that it is easier to farm straight across than to go around the 12 1/2 acres.

The plaintiff's son testified that the 12 1/2 acre tract was summer fallowed and cropped in 1950 and 1952. He testified that he had difficulty in harvesting; that it would be easier to work straight through the strip than to work around it; that the north line of the farm land is practically straight east and west; that a road runs along the hay meadow; and that the farm land slopes up to the south. In his opinion, the school land lease was worth around $10,000 in 1948, that was before there was any wet land on it, and, from his knowledge of the land, he testified that in his opinion it was worth, at the time of trial, $3,500. On cross-examination he testified that the 1948 yield of wheat on this land was 1,968 bushels; the 1950 yield was 1,988 bushels; and the 1952 yield was 2,606 bushels. In 1950, they had the heaviest yield of hay on the meadow, in tonnage, that they had ever had. This was due to wet year. He also testified that...