Roe v. Howard Cnty.

• Decision Date: 03 January 1906
• Parties: ROE v. HOWARD COUNTY ET AL.
• Court: Nebraska Supreme Court

75 Neb. 448

106 N.W. 587

ROE

v.HOWARD COUNTY ET AL.

Supreme Court of Nebraska.

Jan. 3, 1906.

Syllabus by the Court.

In appeals in equity cases, this court will examine the evidence and arrive at an opinion of the facts established uninfluenced by the conclusion arrived at by the trial court except in so far as a presumption in support of such conclusion is derived from the opportunity which the trial judge has of seeing and hearing the witnesses and of judging their candor, their knowledge of the facts, their intelligence, and bias or partiality, if any is exhibited.

Where water, be it surface water, the result of rain or snow, or the water of springs, flows in a well-defined course, be it ditch or swale or draw in its primitive condition, and seeks its discharge in a neighboring stream, its flow cannot be arrested or interfered with by a landowner to the injury of the neighboring proprietors, and what a private proprietor may not do neither can the public authorities, except in the exercise of the right of eminent domain.

The court will not presume that the commissioners appointed to assess damages to the owners of land over which it runs considered it necessary, in the proper construction of the road, to divert the water naturally seeking an outlet in a draw and conduct it in an artificial ditch along the highway for a mile or more and there discharge it in such manner that it damaged the land of the plaintiff or that plaintiff was allowed damage for such disposition of the water.

An easement by prescription can be acquired only by an adverse user for 10 years, and the commencement of the time required for the prescription to ripen dates from the time when the party was damaged or had a cause of action arising from the adverse user.

Commissioners' Opinion. Department No. 2. Appeal from District Court, Howard County; Hanna, Judge.

Action by David Roe against the county of Howard and others. Judgment for plaintiff, and defendants appeal. Affirmed.

The following is a plat of the real estate in controversy:

IMAGE

Frank J. Taylor and T. T. Bell, for appellants.

A. A. Kendall and W. H. Thompson, for appellee.

DUFFIE, C.

The decree of the district court contains findings upon all the issues made by the pleadings, with an exception hereinafter referred to. These findings, together with a plat of the surrounding country introduced by the plaintiff, present the matter in dispute between the parties in as brief and clear a manner as any synopsis of the pleadings which we could make. After a general finding for the plaintiff, the decree continues as follows:

“The court further finds that at the time this action was commenced and previously thereto the plaintiff was a resident taxpayer of the said county of Howard, and was the owner and in possession of the S. E. 1/4 of section 32 and the N. W. 1/4 of section 33, and that Miles Carter was the owner and in possession of the S. W. 1/4 of 33, all in township 14 N. of range 10 W., in said county. The court finds that at the said times A. L. Warne was the owner and in possession of the N. W. 1/4 and the S. 1/2 of the S. W. 1/4 of section 4, and that J. M. Martin was the owner and in possession of the S. E. 1/4 of section 5, all in township 13 N. of range 10 W., in said county. The court finds that sections 4, 8, 9, 16, and 17 in said township 13 are low, flat, and nearly level lands, and are wet and swampy during a great portion of the year, and that a large amount of surface and seepage waters collect thereon and flow therefrom. The court finds that said surface and seepage waters, by the processes of nature, formed and gathered into a draw or a low drain and water course known as the ‘Warne draw,’ which water course runs in a northeasterly course or direction from the land of said Martin into the public road running north and south between sections 4 and 5 and in an easterly direction across said road and then in a northeasterly direction across the lands of said Warne and one George Gans, who owns the N. 1/2 of the S. W. 1/4 of section 4, lying between the two tracts of the said Warne, thence on across lands of the said Warne and across the lands of the said Carter and several miles to the Loup River. That the said draw or water course is deeper than the surroundings lands, and has well-defined banks and an open course in some places, and is fed by springs and the surface and seepage waters from sections 8, 9, 16, and 17 aforesaid; and that said waters have constantly flowed in said draw and water course for many years; and that said draw and water course is the only natural course and outlet for said waters; and that said northeasterly direction is the only natural direction for said waters to flow and the only direction that they did flow previous to the acts complained of by plaintiff; and that said waters never did flow down said road in a northerly direction nor at the place or in the place where the same now flows previous to the acts complained of by the plaintiff. The court finds that after the road between sections 4 and 5 and 32 and 33 was opened to public travel, and to wit, in the year 1887, a culvert was built by said county across said road at the point where said Warne draw and water course crosses said road, to enable the waters coming down said draw to pass thereunder and provide a safe crossing for the public over said draw, and that the dirt was taken from the sides of the road near said culvert to grade the approaches to said culvert, and that thereafter, in the year 1893, said culvert was washed out by the waters coming down said draw and was swept to the east side of the road, and said water course became filled up where it crossed said road, and remained so until the year 1897, when the proper authorities of said county ordered it opened, and a new culvert built; that said new culvert was built during said year last mentioned, being 16 feet in length, and about 8 feet wide, and 3 1/2 feet high, to enable water to pass thereunder, and more dirt was taken from the sides of the road to grade the approaches to said culvert, thereby making ditches at the sides of the road for a short distance from said culvert. The court finds that in the year 1891 the said A. L. Warne opened a ditch along the west side of said road running north and south between sections 4 and 5 and 32 and 33; that the southern terminus of said ditch so constructed was at the west end of said culvert constructed across said Warne draw as aforesaid, and that the northern terminus of said ditch so constructed was about 25 rods south of the quarter section corner between said sections 32 and 33; and that said Warne worked on said ditch from time to time during several years thereafter, and that said work was without authority and was not authorized by the properly constituted authorities of said county, and was constructed for the purpose of draining the water coming down said Warne draw from said Warne's land and carrying it north in said ditch along said road to the northern terminus of said ditch where it was discharged in said road, and from there it went onto the land of Miles Carter and from there onto the land of the plaintiff in section 33; that in passing down said ditch the same overflowed and went upon the land of the plaintiff in section 32 continuously and in large quantities in the year 1903, to the damage of plaintiff's crops growing on said land. The court finds that in the year 1899 and thereafter the county authorities of said county assumed control of said ditch, excavating and greatly enlarging the same, and made use of said ditch to convey the waters coming down said draw in a northerly direction, and thereby changed the course and direction of the water from its natural course, and that said authorities thereby permitted said water to be discharged into the public road there to pass onto the lands of plaintiff, to his damage. The court finds that previous to the commencement of this action plaintiff notified and requested the defendant Lauritsen, road supervisor, and other defendants, as county commissioners, to fill up said ditch and stop the flow of water upon plaintiff's land, which request was not granted. The court finds that the natural and only course for said water to flow is across the road in an easterly direction at the culvert and thence in a northeasterly direction across the lands of said Gans and Warne, and not in a northerly direction along the public road, and that the action of said Warne and of the said defendants in constructing and extending said ditch and continuing and maintaining same so as to divert said water from its natural course and cast it into the public highway and upon the lands of plaintiff was and is wrong and unlawful, and was not made and is not maintained for the purpose of properly and lawfully constructing and maintaining said public road, but was and is for the purpose of draining said waters from the lands east of said road, and that the money expended from the public funds of said county for said purpose is an improper and unlawful use of the public funds of said county and is unlawful. The court finds that in the construction of said ditch as aforesaid on the west of said road from said Warne draw north to a point about 25 rods south from the quarter section corner between said sections 32 and 33, which was the north terminus of said ditch, that it was constructed through a ridge or slight elevation of land which is located at or about the northeast corner of the S. E. 1/4 of said section 5, and that in order to permit said water to flow down said ditch it was necessary to dig said ditch, at said last-mentioned point, about four feet deep, and...