Smith v. Platte Valley Public Power & Irrigation Dist.

• Decision Date: 18 March 1949
• Docket Number: 32418.
• Citation: 36 N.W.2d 478,151 Neb. 49
• Parties: SMITH v. PLATTE VALLEY PUBLIC POWER AND IRRIGATION DIST.
• Court: Nebraska Supreme Court

36 N.W.2d 478

151 Neb. 49

SMITH v. PLATTE VALLEY PUBLIC POWER AND IRRIGATION DIST.

No. 32418.

Supreme Court of Nebraska

March 18, 1949

Syllabus by the Court.

1. In testing the sufficiency of evidence to support a verdict it must be considered in the light most favorable to the successful party, that is, every controverted fact must be resolved in his favor and he should have the benefit of every inference that can reasonably be deduced therefrom.

2. When evidence is in conflict and such that reasonable minds can draw different conclusions therefrom it presents a jury question.

3. Under section 70-671, R.S. 1943, a public power district is liable for seepage when and if it accrues, damages therefor to be recovered in one action.

4. The measure of damages for any injury thus caused to lands is the difference in the fair market value thereof, if any immediately before and immediately after the seepage, taking into consideration all the uses to which the land was put and for which it was reasonably adaptable. In addition thereto recovery may be had for damages to any annual crops growing thereon at the time.

5. In an action for damages to growing crops alleged to have been caused by seepage resulting from the construction and operation of an irrigation canal it is necessary to establish a causal relationship between the water in the canal and that causing the seeped condition on plaintiff's lands.

6. A conflict in the testimony of qualified experts presents a question for the jury.

7. A cause of action for damages arising from seepage accrues when the lands are visibly affected thereby. In establishing the damage thereto the owner is entitled to show the manner and extent to which the lands have been affected. In doing so the owner may show the quantity and quality of the crops produced thereon both before and after the seepage, up to the time of trial.

8. If the right to damages is a matter of reasonable litigation and the amount to be recovered, if any, is unliquidated and must be fixed, not by mere computation but by suit, interest may not be allowed for time precedent to the settlement of the right to a recovery and the ascertainment of the amount.

Crosby & Crosby and R. H. Beatty, all of North Platte, for appellant.

Carr & Hoagland and C. L. Baskins, all of North Platte, for appellee.

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

WENKE Justice.

George W Smith brought this action in the district court for Lincoln County against the Platte Valley Public Power and Irrigation District, a public corporation. The action was brought to recover damages caused to plaintiff's land and crops by seepage waters which plaintiff claims escaped from defendant's works. Plaintiff recovered a verdict of $9,000 and judgment was entered thereon. Defendant's motion to set aside this verdict and for judgment notwithstanding or in the alternative for new trial having been overruled, it appeals. Plaintiff has cross-appealed.

The principal question raised by the appeal is the sufficiency of the evidence to sustain the verdict.

In considering this question we apply the following rule: 'In testing the sufficiency of evidence to support a verdict it must be considered in the light most favorable to the successful party, that is, every controverted fact must be resolved in his favor and he should have the benefit of every inference that can reasonably be deduced therefrom.' Remmenga v. Selk, 150 Neb. 401, 34 N.W.2d 757, 759.

This is, in effect, the same as the following rule: "A motion for a directed verdict must for the purpose of decision thereon be treated as an admission of the truth of all material and relevant evidence submitted on behalf of the party against whom the motion is directed. Such party is entitled to have every controverted fact resolved in his favor, and to have the benefit of every inference that can reasonably be deduced from the evidence.' Roberts v. Carlson, 142 Neb. 851, 8 N.W.2d 175, 177.' Spaulding v. Howard, 148 Neb. 496, 27 N.W.2d 832, 835.

However, it should be remembered that if the evidence is in conflict and such that reasonable minds can draw different conclusions therefrom then it presents a question for a jury's determination.

Under section 70-671, R.S.1943, the appellant is liable for seepage when and if it accrues. See, Applegate v. Platte Valley Public Power and Irrigation District, 136 Neb. 280, 285 N.W. 585, and Heiden v. Loup River Public Power District, 139 Neb. 754, 298 N.W. 736. Such damages must be recovered in one action. Applegate v. Platte Valley Public Power and Irrigation District, supra.

The measure of damages for any injury thus caused to the land is the difference in the fair market value thereof, if any, immediately before and immediately after the seepage, taking into consideration all the uses to which the land was put and for which it was reasonably adaptable. In addition thereto recovery may be had for damages to any annual crops growing thereon at the time. Applegate v. Platte Valley Public Power and Irrigation District, supra; Asche v. Loup River Public Power District, 138 Neb. 890, 296 N.W. 439; Heiden v. Loup River Public Power District, supra.

Appellant contends the record is absent of competent evidence to prove that the waters escaping from its works have damaged or affected the appellee's lands; that appellee has failed to establish a causal connection or relationship between the escaped waters and the seeped condition; and that the verdict must necessarily be based on guess or speculation.

As stated in Lincoln Joint Stock Land Bank v. Platte Valley Public Power and Irrigation District, 140 Neb. 316, 299 N.W. 485: 'In an action for damages to growing crops alleged to have been caused by seepage resulting from the construction and operation of an irrigation canal, it is necessary to establish a causal relationship between the water in the canal and that causing the seeped condition on plaintiff's lands. * * * Proof which merely leaves the matter to be established in the realm of speculation and conjecture is not sufficient to sustain a judgment.'

Appellee's petition, and the evidence offered in support thereof, show his theory of the case to be that when appellant put water in its reservoir and canal that large amounts thereof escaped and caused the level of the ground water under his lands to rise and thereby caused them to become seeped, resulting in the damages of which he here complains. Appellant's theory, as evidenced by its answer and the evidence offered in support thereof, is that the water escaping from its works could not and never did reach appellee's lands and that the seeped condition of appellee's lands was the result of natural conditions caused by abnormally high rainfall and low evaporation and transpiration.

It should be here stated that the evidence relating to the fact that the lands of appellee became seeped in 1942 and continued to be in that condition until the date of trial is undisputed and admitted.

Both parties used engineers as experts to establish the cause of this seeped condition. There was a conflict in the testimony of these experts and consequently it was the province of the jury to determine whether the conclusions of appellee's or appellant's experts were correct. See Crouch v. National Livestock Remedy Co., 210 Iowa 849, 231 N.W. 323; Chippewa Falls Hotel Co. v. Employers' Liability Assur. Corp., 208 Wis. 86, 241 N.W. 380; and E. L. Chester Co. v. Wisconsin Power & Light Co., 211 Wis. 158, 247 N.W. 861.

What was said in Chippewa Falls Hotel Co. v. Employers' Liability Assur. Corp., supra [208 Wis. 86, 241 N.W. 381], is applicable here. Therein the court said: 'Counsel argue very persuasively from the facts which are mostly not in dispute in support of their respective theories. Each points out why in his opinion his own theory is correct and that of his opponent is untenable. From careful consideration of all facts and arguments, we are unable to perceive that the theory of plaintiff is irreconcilable with the admitted physical facts or the established laws of physics applicable to them. We cannot see that any useful purpose would be served by stating in detail these facts or laws. Defendant's counsel also urge that at most it is uncertain whether the injuries were caused as claimed by the plaintiff or as claimed by defendant, and that the finding of the jury rests upon speculation. But duly qualified experts produced by plaintiff testified positively...