Stolting v. Everett

• Decision Date: 08 February 1952
• Docket Number: No. 33079,33079
• Parties: STOLTING et al. v. EVERETT et al.
• Court: Nebraska Supreme Court

Page 603

51 N.W.2d 603

155 Neb. 292

STOLTING et al. v. EVERETT et al.

No. 33079.

Supreme Court of Nebraska.

Feb. 8, 1952.

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. This court will not disturb the findings of a jury unless on an examination of the record it may be said that such findings are not supported by any evidence or are clearly wrong.

3. A riparian owner may not embank against the overflow of running streams when the effect is to cause an increased volume of water on the land of another riparian owner to his injury, and if he does so he is answerable in damages.

4. In an action for damages to land and growing crops by floodwaters of a stream, subject to overflow from natural causes, and which it is alleged were thrown upon the plaintiffs' land by the negligent and improper construction of jetties and a dike, the burden of proof is on the plaintiffs to show that the construction complained of either caused such overflow or increased the same, or in some manner contributed thereto, together with the nature and extent of the increased overflow, if any, and the amount of damages caused thereby.

5. Under ordinary circumstances expert opinion evidence is to be considered and weighed by the triers of fact like any other testimony.

Denney & Denney, Fairbury, J. W. Weingarten, W. P. Loomis, Omaha, A. L. Detmer, Fairbury, for appellants.

George A. Skultety, Fairbury, Hubka & Hubka, Beatrice, for appellees.

Before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

WENKE, Justice.

This action was commenced in the district court for Jefferson County to recover damages for injury done to the plaintiffs' lands by the floodwaters of the Little Blue River. As a basis for the action the plaintiffs claim that the damage to their lands was caused by the careless, negligent, and wrongful construction, reconstruction, and maintenance of jetties and a dike by the defendants which prevented the floodwaters of the Little Blue River from flowing in its natural flood channel but caused it to flow over their lands in such manner as to wash away the top soil thereof and cut a new channel across it. The jury found for plaintiffs and assessed the amount of damages in the sum of $6,500 and rendered verdict accordingly. Defendants filed a motion for judgment notwithstanding the verdict or, in the alternative, for a new trial. The court overruled this alternative motion and rendered judgment on the verdict. It is from the overruling of the alternative motion and rendering of the judgment that this appeal was taken.

Appellees, including the defendant Anthon F. Stolting, are the heirs of Henry Stolting, deceased, and the owners of the damaged land. We will refer to this land as the Stolting lands. Appellants are Arthur and Mary Everett and the Chicago, Burlington & Quincy Railroad Company. In this opinion, when it is necessary to refer to the appellants severally, we will refer to them respectively as the Everetts and the Railroad, and to the lands owned by the Everetts as the Everett lands.

It is the appellants' primary contention that the evidence adduced is not sufficient to sustain the jury's finding that what they did caused the damage to the Stolting lands and therefore the trial court erred in not sustaining either their motion for a directed verdict or, after verdict, their motion for judgment notwithstanding the verdict.

The rules applicable are as follows:

'In every case, before the evidence is submitted to the jury, there is a preliminary question for the court to decide, when properly raised, not whether there is literally no evidence, but whether there is any upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the burden of proof is imposed.' Krichau v. Chicago, B. & Q. R. R. Co., 150 Neb. 498, 34 N.W.2d 899.

'Where the evidence was insufficient to sustain a judgment in favor of the plaintiff, it was the duty of the trial court to sustain a motion directing a verdict for defendant at the close of plaintiff's evidence.' Goodhart v. Chicago, B. & Q. R. R. Co., 146 Neb. 290, 19 N.W.2d 549.

'If a motion for directed verdict made at the close of the evidence in a case should have been sustained for want of evidence to support a verdict in favor of the party against whom made, it is the duty of the court on motion for judgment notwithstanding the verdict timely made to sustain such motion to set aside the verdict and to render the judgment pursuant to the motion for directed verdict.' Hamilton v. Omaha & C. B. St. Ry. Co., 152 Neb. 328, 41 N.W.2d 139, 143.

'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.' Smith v. Platte Valley Public Power & Irrigation Dist., 151 Neb. 49, 36 N.W.2d 478, 479.

'This court will not disturb the findings of a jury unless on an examination of the record it may be said that such findings are not supported by any evidence or are clearly wrong.' Keyser v. Allen, 149 Neb. 449, 31 N.W.2d 309, 313.

The lands herein involved lie in the flood plane of the Little Blue River as its winding course passes through the south half of Section 5, Township 1 North, Range 3 East of the 6th P. M., in Jefferson County, Nebraska, which is just west and a little south of Endicott. The flood plane of the Little Blue is generally about a half to three-quarters of a mile wide. The right-of-way, grade, and tracks of the Railroad also pass through the south half of Section 5. The right-of-way is 100 feet wide and runs generally in an east to west direction although slightly to the southwest. When it reaches the northeast corner of the southeast quarter of the southwest quarter of the section the turn to the southwest increases. It passes out of the section at about the southwest corner thereof. It crosses the Little Blue at more or less of a right angle at a point near the west edge of the southeast quarter of the southwest quarter of the section. The grade of the railroad roadbed is about 10 to 11 feet above the general level of the flood plane. That part of the Everett lands herein involved is their land lying in the flood plane of the Little Blue just north of and adjacent to the right-of-way and immediately east of and adjacent to the Little Blue as it turns south in its course to pass under the main bridge. That part of the Stolting lands herein involved is their land lying just south of the right-of-way and more or less within a horseshoe bend of the Little Blue. It is, for all practical purposes, located in the southeast quarter of Section 5 and consists of 64.46 acres of which 50 acres were subject to cultivation. It is this 50-acre tract that was damaged. The remainder of the tract, or 14.46 acres, is covered with trees and lies adjacent to and immediately south of the right-of-way. The Railroad owns approximately 13 acres in this flood plane besides its right-of-way. This land lies in the north part of the southeast quarter of the southwest quarter of the section. It is north of the Little Blue and adjacent to the Everett lands which lie immediately to the north. It is divided by the right-of-way.

Located in the right-of-way in the area herein involved are three bridges. The first is the main bridge over the Little Blue which, with a trestle adjacent thereto on the east, is 668 feet long. East thereof some 1,600 feet is a 200-foot bridge referred to as the middle bridge. It has an opening under it varying from 4 to 8 feet in depth. East of the middle bridge some 1,300 feet is the Smith bridge. This bridge is 240 feet long and the opening under it varies from 4 to 13 feet in depth. It is over a natural stream called Smith Creek. The middle and Smith bridges are located in the right-of-way in an area where it lies between the Everett and Stolting lands.

Commencing in December 1947 the Railroad, in conjunction with the Everetts, commenced putting jetties along the east bank of the Little Blue and dikes on the east bank thereof at the furthest east point in the bend of the river where, coming from the west, it turns south to pass under the main bridge. This was done for the purpose of preventing the river from cutting further to the east in the Everett lands and to prevent it from forming a new channel across the Everett lands in a line approximately through the middle bridge and from there across the Stolting lands and terminating in the present main channel of the river at a point about where Smith Creek now enters it. This work was continued until, in June 1950, it included a completed dike some 5 to 6 feet...