Pyle v. Richards

• Citation: 22 N.W. 370,17 Neb. 180
• Parties: PYLE v. RICHARDS.
• Decision Date: 10 February 1885
• Court: Supreme Court of Nebraska

17 Neb. 180

22 N.W. 370

PYLE

v.RICHARDS.

Supreme Court of Nebraska.

Filed February 10, 1885.

Error from Richardson county.

Isham Reavis, for plaintiff.

Ed. Faloon, for defendant.

MAXWELL, J.

This action was brought by Richards against the plaintiff in error, in the district court of Richardson county, to recover damages for injury to his land by the alleged diversion of the course of the stream, whereby it discharged its waters on Richards' land. The answer was a general denial. The cause was tried to a jury, and a verdict returned in favor of Richards, upon which judgment was rendered.

The first error assigned is that the evidence is insufficient to sustain the verdict, as it is claimed that the proof fails to show the existence of a water-course, hence there could be no diversion. The testimony tends to show the following facts: That the lands of the plaintiff and defendant are south of the Nemaha river, in Richardson county, and that the A. & N. railway runs nearly on the line between their respective tracts of land; that the plaintiff's land is south of and higher than that of the defendant; that one or more of the ravines extend some distance above the plaintiff's land, in which are certain springs, from which, during a great portion of the year, flow a small stream. As stated by one witness, “In very dry weather, once in a while it went dry, or partially so; down at the road, it sinks a great deal of the time; in wet weather, it runs all the time.” The natural course of this stream is northeast, through the plaintiff's land. The plaintiff built a dam across this water-course, and made a new channel for the stream, running north, so that its waters were discharged against the railroad, thence, through what is designated in the testimony as the west culvert, on the lands of the defendant. The testimony also tends to show that a large amount of surface water from melting snows or heavy rains also flows through said water-course.

To constitute a water-course, the size of the stream is immaterial. It must be a stream in fact, as distinguished from mere surface drainage occasioned by freshets or other extraordinary causes, but the flow of water need not be constant. Shields v. Arndt, 4 N. J. Eq. 234;Gillett v. Johnson, 30 Conn. 180;Bassett v. Manuf'g Co. 43 N. H. 569;Dudden v. Guardians, etc., 38 Eng. Law & Eq. 526. In Shields v. Arndt, it is said: “There must be water as well as land, and it must be a stream usually flowing in a particular direction. It need not flow continually, as many streams in...