Probert v. Grint

• Decision Date: 18 July 1947
• Docket Number: 32186.
• Citation: 28 N.W.2d 548,148 Neb. 666
• Parties: PROBERT et al. v. GRINT et al.
• Court: Nebraska Supreme Court

28 N.W.2d 548

148 Neb. 666

PROBERT et al. v. GRINT et al.

No. 32186.

Supreme Court of Nebraska

July 18, 1947

Appeal from District Court, Custer County; Reed, Judge.

Syllabus by the Court.

1. When an action in equity is appealed, it is the duty of this court to try the issues de novo and to reach an independent conclusion without reference to the findings of the district court. But in a case wherein the court has made a personal examination of the physical facts, and where, in the same case, the oral evidence in respect of material issues is so conflicting that it cannot be reconciled, this court will consider the fact that such examination was made and that such court observed the witnesses and their manner of testifying, and must have accepted one version of the facts rather than the opposite.

2. Record examined and evidence held sufficient to sustain judgment of the district court.

George I. Craven, of Lincoln, for appellants.

Schaper & Schaper, of Broken Bow, for appellee.

Heard before SIMMONS, C. J., and PAINE, CARTER, MESSMORE, YEAGER, CHAPPEL and WENKE, JJ.

MESSMORE Justice.

The plaintiffs, as owners of the southwest quarter of Section 9 Township 19 North, Range 17 west of the Sixth Principal Meridian in Custer County, Nebraska, instituted this action in equity in the district court against the present owners of the northeast and southeast quarters of Section 9, and against Comstock Township which maintains an east and west township road between the north and south halves of Section 9. The purpose of the action was to enjoin the defendants from maintaining a dam and ditch in the township road, from maintaining a dam and ditch on the northeast quarter of Section 9, to require defendants to remove the dams and ditches constructed by them; and for such other and further relief as equity affords.

For convenience we will not hereafter detail the description of the lands involved in this appeal, but will make reference thereto as to the location in Section 9.

The plaintiffs' petition is in accordance with the purpose of the action as hereinbefore described. The defendants' answers deny the construction of dams and ditches affecting natural drainways that in any manner divert surface waters over to and upon the plaintiffs' land.

The district court found generally in favor of the defendants and against the plaintiffs, and entered a judgment denying the injunctive relief to the plaintiffs as prayed for in their petition. Upon the overruling of their motion for new trial, the plaintiffs appeal.

For convenience the parties will be referred to in their original status as the action was tried in the district court.

The plaintiffs' assignment of error is that the judgment of the district court is contrary to the evidence and the law. This requires a review of the evidence, as the case is tried de novo in this court. We therefore give the following resume of the relevant and material evidence adduced from the record.

The record shows that George M. Probert, the father of plaintiff Ray E. Probert, held fee simple title to the southwest quarter of Section 9 from November 16, 1891, to April 1, 1935, or for a period of approximately 44 years, when he conveyed this land to the plaintiffs. The title of the other quarters in Section 9 appear in the record and disclose that George M. Probert and his wife also at one time owned the northeast quarter and the southeast quarter of Section 9. It appears that some of the Proberts lived on the northeast and southeast quarters from about 1908 to 1937. The defendants Sydney and Josephine Grint acquired title to the northeast quarter by deed September 5, 1942, and went into possession March 1, 1943. Harold E. Grint became the owner of the southeast quarter, by deed, May 10, 1940.

The defendant Sydney Grint was born on June 10, 1895, on a farm located in the first section west of Section 9, where he lived until 1923, at which time he moved to his present residence on the northwest quarter of Section 9. Harold Grint was born in October 1891, on the section west of Section 9; lived there until September 1917; farmed the northwest quarter of Section 9 in 1920; and lived on the northeast quarter of Section 9 from 1920 until 1944, when he moved to the southeast quarter of Section 9.

The plaintiff Ray E. Probert was born in Iowa; moved to Nebraska in 1889, and first moved to the northwest quarter of Section 9 where he lived one year; then moved to the southwest quarter of Section 9 where he has lived for more than 55 years.

The following sketch will permit a better visualization of the conditions existing at the scene of the controversy.

RPT.CC.1947105215.00010

(Image Omitted) Contours and elevations are eliminated from the above sketch. There appears in the evidence, however, defendants' exhibit 23, containing elevations and contours, which is a map of the drainage area in controversy; also, exhibit 11, a plat made by the plaintiffs' engineer witness; and field notes, profiles, and levels made by engineers for both plaintiffs and defendants.

The east and west road between the north and south halves of Section 9 has been traveled since 1908. On May 6, 1924, a petition for a 33-foot road was filed by G. M. Probert, his wife Margaretta Probert, and others. The petition was granted July 31, 1926. Later, G. M. Probert, Margaretta Probert, and R. E. Probert, one of the plaintiffs, signed a petition agreeing to give additional seven feet on the south side of this road, in order to make a 40-foot road. This petition was granted June 30, 1930. The road extends from the west boundary line of Section 9 east for a distance of 195 rods. The road was taken off of the north side of the south half of Section 9, with the north side of the road being the south boundary of the north half of the section. It extends east from the southwest corner of the northeast quarter, and the northeast corner of the southwest quarter about 35 rods in the direction of Harold Grint's house, and then southeast thereto.

There are 19.1 acres that contribute water to the mouth of the west canyon, and 33.3 acres of the drainage area that contribute water to the mouth of the east canyon. There are 15.5 acres representing the area that contributes water that will lead to the township road. The total of 67.9 acres represents the drainage area on the northeast and northwest quarters as disclosed by defendants' exhibit 23, or, in other words, that contributes water to the draws in the northeast quarter of Section 9 leading to the center of the section.

Before the road was considered as a township road, George M. Probert placed a 10-inch culvert about 100 feet west of the northeast corner of the southweat quarter of Section 9. In August 1932, a larger culvert, which is 30 inches in diameter and of corrugated pipe, was placed in the highway under the supervision of George M. Probert, at the same point, and is still there. The reason for replacing the 10-inch culvert with the 30-inch culvert was because the smaller one filled up, and would not carry the volume of water that flowed through it from the west drain. No culverts were placed east of this pipe until 1944.

The surface waters from the east and west canyons drain onto a rolling piece of ground approximately 500 feet square in the southwest corner of the northeast quarter, which has always been under cultivation. This point is designated as being important for the reason that it receives the surface waters as heretofore indicated.

The plaintiff Ray E. Probert testified in substance as to his acquaintance with the northeast quarter, the 500-foot square piece of ground above described, and with the flow of the surface waters from the east and west canyons; that 52 years ago the west watercourse ran across the southeast corner of the northwest quarter onto the southwest quarter. About 25 years ago the west watercourse changed by nature and went on south and across the township road onto the southeast quarter, the change occurring in 1920. The other watercourse on the southwest corner of the northeast quarter came from the northeast on the northeast quarter from the mouth of the east canyon, where it proceeded on to level ground, and in 1925, it cut a smaller course right down along the road. The course of this drain was practically straight south from the place it started to where it crossed the township road at the gateway. The largest one of the three drainage courses came out of the canyon and ran south and west. It was probably two-thirds of the distance from the east drainway over to the west drainway, and it went over onto the southeast quarter of Section 9. The east watercourse was not in existence 52 years ago. The center watercourse and the west watercourse were in existence at that time, the center watercourse being the larger, and drained the largest basin. The east watercourse came into existence about 1925. This watercourse developed to the size it is at this time in approximately three years.

The watercourses having been designated as the east, center, and west drains, the plaintiff further testified, in substance, as to the manner in which these watercourses crossed the south boundary line of the northeast quarter in 1942: When the water left the east canyon into the east watercourse, it flowed generally south and crossed the south boundary of the northeast quarter at the gateway, which is approximately 500 feet from the west line of the northeast quarter. The center watercourse ran south into the northeast quarter, then west and crossed the south boundary line of the northeast quarter approximately two-thirds of the distance from the east watercourse to the west watercourse, approximately 150 feet from the southwest corner of the...