Robinson v. Central Neb. Public Power & Irr. Dist.
| Decision Date | 09 November 1945 |
| Docket Number | 31968. |
| Court | Nebraska Supreme Court |
| Parties | ROBINSON v. CENTRAL NEBRASKA PUBLIC POWER & IRRIGATION DIST. |
Syllabus by the Court.
1. The liability of public power and irrigation districts for 'all overflow' imposed by section 70-671, R.S.1943 is absolute only for such waters as flow over and from or escape out of their reservoirs or canals and damage another.
2. The words 'or damaged' in section 21, art. I of the Constitution, include all actual damages resulting from the exercise of the right of eminent domain which diminish the market value of private property. Their insertion was intended to give a right of recovery which did not previously exist and not limit or restrict any remedy previously existing or subsequently provided by statute.
3. The same constitutional provision that requires one who lawfully takes or damages property for public use to pay just compensation therefor, protects him when he is without fault from liability to pay more than once.
4. If the landlord's right of action for proper construction and operation is satisfied by payment of just compensation a subsequent grantee or a subsequent tenant would have no more rights than the landlord since he would take subject to such damages.
5. Actions or proceedings to recover just compensation for property taken or damaged for public use by proper construction and operation are permanent as distinguished from transient in character and ordinarily recoverable in but one action.
6. The question in classifying causes of action as permanent or transient in such cases is not whether damages were suffered because that is a fact alike common to both.
7. Where the structure causing the injury is permanent in character the injury cannot be classified as transient unless the structure was erected or maintained without lawful right or has been put to an unlawful or improper use, or unless it was negligently constructed or operated and the injury complained of resulted, not from the fact of the existence of the structure but from the manner of its construction or operation.
8. A public power and irrigation district having lawfully obtained its right of way has the same right as any other land proprietor as to surface water.
9. The rule in this jurisdiction is that a proprietor may defend himself against the encroachments of surface water by embankment or dyke or otherwise and will not be liable in damages which may result from the deflection and repulsion defended against, provided that the proprietor in making defense on his own land himself exercised ordinary care and provided he so uses his own property as not to unnecessarily and negligently injure another.
Shuman & Overcash, of North Platte, for appellant.
Beatty & Clarke, of North Platte, and R. O. Canaday and P. E Boslaugh, both of Hastings, for appellee.
Heard before SIMMONS, C. J., PAINE, CARTER, MESSMORE, YEAGER and CHAPPELL JJ.
This action was instituted by plaintiff to recover damages from defendant district for destruction of his growing crop because of its alleged obstruction of diffused surface waters by a spoil bank on its right of way for an irrigation canal. At the conclusion of plaintiff's evidence the trial court sustained defendant's motion to dismiss and entered judgment for defendant. Upon the overruling of plaintiff's motion for new trial, he appealed to this court, assigning as error that the order and judgment is contrary to the evidence and applicable law. We find that plaintiff's assignments cannot be sustained.
Plaintiff argues that because of section 21, art. I, Constitution of Nebraska, section 70-671, R.S.1943, section 28-1016, R.S.1943, and the evidence adduced by him in support of the allegations of his petition to the effect that defendant district negligently constructed and operated its canal, the trial court should have overruled defendant's motion to dismiss.
The ownership of the land involved by one Kate M. Herrod, plaintiff's crop tenancy thereof and damages to plaintiff's crops thereon by surface waters are conceded. The evidence is that plaintiff knew about and was acquainted with the farm and its contour for more than 25 years. He examined it and looked it all over just before he leased it. The land was good, almost level, farm land which sloped slightly to the northeast. There was no natural drainway, draw, channel or watercourse of any kind upon it. It is conceded that we have involved here only wholly diffused surface waters falling upon or flowing over the land from lands to the south of plaintiff.
Two or three years before plaintiff ever became a tenant or had any interest in the property the defendant district, having previously paid compensation therefor and lawfully acquired a right of way from the owner by deed, constructed and operated an irrigation canal diagonally northwest to southeast across the land with a spoil bank on the southwest side of the canal. A little northwest of the center of the spoil bank defendant constructed and maintained one three foot syphon or underdrain. There is no complaint by plaintiff that this underdrain was obstructed by debris or otherwise. Plaintiff testifies that the bottom of the syphon was two and one-half or three feet above the level of the farm land. However, a picture appearing in plaintiff's evidence lends doubt to that contention. A heavy, extraordinary rain fell on or about June 12 and 13, 1943. The surface waters therefrom falling upon plaintiff's land and coming from and across land to the south of him flowed with force down over most of that portion of plaintiff's land southwest of the spoil bank in a wide sheet covering most of it. The surface waters flowed against the spoil bank, drained gradually into the underdrain for four days and thereafter a part of it stood on plaintiff's field for some time destroying a large part of his growing crop. There is evidence that the land was never theretofore flooded, by ordinary rainfall or otherwise, either before or since construction of the canal. There is no direct evidence that the canal was negligently constructed or operated, or that it could have been constructed in any other manner for the purposes and uses of defendant in lawfully carrying on its public works.
Plaintiff concedes in his brief that the deed from the owner to defendant district contained the provision: 'The above named consideration includes all damages sustained by grantors as a result of the canal of The Central Nebraska Public Power and Irrigation District located on the aforementioned real estate.'
We will first discuss the two statutes under which plaintiff claims a right to recover. Referring to public power and irrigation districts, section 70-671, R.S.1943, provides: (Italics ours.)
Plaintiff contends that since this court in Asche v. Loup River Public Power District, 138 Neb. 890, 296 N.W. 439, held that damages from seepage were absolute then by analogy damages from overflow would also be absolute. For purposes of argument in this case that proposition may be admitted. However, the rule has no application here because plaintiff assumes a strained definition of 'overflow' which was never intended by the act. The word 'all' modifies the word 'overflow'. We are convinced that the legislature never thereby intended to make the liability of such districts absolute for all interference with or obstruction of purely diffused surface waters. The word 'overflow', as used in the statute, must reflect its ordinary, every day application and use. The act intended to specifically make the damage liability of such districts for 'all overflow' absolute for only waters flowing over and from or escaping out of their reservoirs and canals.
We intended to and did so construe and apply the act in Webb v. Platte Valley Public Power & Irrigation District, Neb., 18 N.W.2d 563, a case wherein the canal was full, overflowing and thereby forcing flood waters back upon the plaintiff's land destroying his crops. The situation in this case is entirely different. To hold that diffused surface waters which never entered defendant's canal were 'overflow' and impose an absolute liability upon defendant would in effect, without statutory authority, abrogate the well-known common law of this state relating to diffused surface waters, the evolution of which is exhaustively reviewed and reaffirmed in the recent case of Snyder v. Platte Valley Public Power and Irrigation District, 144 Neb. 308, 13 N.
W.2d 160. We have also examined section 28-1016, R.S.1943, and find that it has no application to the situation presented in this case.
We turn then to the question whether defendant's liability is absolute by virtue of section 21, art. I of the Constitution, which provides: 'The property of no person shall be taken or damaged for public use without just compensation therefor.' This court has construed and applied this section in many cases since its adoption. A perusal of them indicates clearly that the section has no application to situations like that presented by plaintiff. Generally speaking they are cases where property has been taken or damaged for public use without just compensation ever having been paid therefor. As late as Snyder v. Platte Valley Public Power and Irrigation District, supra, we permitted recovery by virtue of the section as well as for negligence and quoted with approval from the opinion in City of Omaha v. Kramer, 25 Neb. 489, 41 N.W. 295, 296, 13 Am.St.Rep. 504. In the latter opinion it was said: 'In other words, the words, 'or damaged,' in section 21 art. 1, of the...
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Robinson v. Power, 31968.
...146 Neb. 53420 N.W.2d 509ROBINSONv.CENTRAL NEBRASKA PUBLIC POWER & IRRIGATION DIST.No. 31968.Supreme Court of Nebraska.Nov. 9, Appeal from District Court, Lincoln County; Tewell, Judge. Action by Orin V. Robinson against the Central Nebraska Public Power & Irrigation District, to recover da......