Wischmann v. Raikes

Decision Date26 June 1959
Docket NumberNo. 34368,34368
Citation168 Neb. 728,97 N.W.2d 551
CourtNebraska Supreme Court
PartiesAlvina WISCHMANN and Alvina K. Wischmann, Administratrix of the Estate of Willy Wischmann, deceased, Appellees, v. Ralph RAIKES, Appellant.

Syllabus by the Court.

1. It is a fundamental principle of jurisprudence that material facts or questions which were an issue in a former action, and were there admitted or judicially determined, are conclusively settled by a judgment rendered therein, and that such facts or questions become res judicata and may not again be litigated in a subsequent action.

2. Where cases are interwoven and interdependent and the controversy involved has already been considered and determined by the court in former proceedings involving one of the parties now before it, the court has the right to examine its own records and take judicial notice of its own proceedings and judgments in the former action.

3. The owners or proprietors of lands bordering upon either the normal or flood channels of a natural watercourse are entitled to have its water, whether within its banks or in its flood channel, run as it is wont to run according to natural drainage, and no one has the lawful right by diversions or obstructions to interfere with its accustomed flow to the damage of another.

4. An adjudication by this court extends to all matters decided expressly or by necessary implication and not alone to the questions actually and formally presented but to all existing in the record and necessarily involved in the decision.

5. The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation and which the parties exercising reasonable diligence might have brought forward at the time.

6. A litigant may not be permitted to split a cause of action or present an issue for determination and avoid the effect of an estoppel by withholding proof of it.

7. It is a well-settled principle of equity jurisprudence that, where a court of equity has obtained jurisdiction of a cause for any purpose, it will retain it for all, and will proceed to a final determination of the case, adjudicate all matters in issue, and thus avoid unnecessary litigation.

8. The relief ordinarily granted in equity is such as the nature of the case, the law, and the facts demand, not at the beginning of the litigation, but at the time the decree is rendered.

9. It is always the duty of the court to instruct the jury as to the proper basis upon which damages are to be estimated. The jury should be fully and fairly informed as to the various items or elements of damage which it should take into consideration in arriving at its verdict, otherwise the jury may be confused and misled.

10. If the owner of lands is prevented from planting any part or all thereof by reason of conditions caused by the unlawful or negligent conduct of another, his measure of damages on that account may be either the reasonable rental value or use value thereof for the season or seasons when he cannot do so because of such conditions.

11. In case of the destruction of a perennial crop the measure of damages is the difference between the value of the land immediately before the injury, with the crop growing thereon, and the value of the land immediately after the destruction of the crop.

12. The measure of damages, when a crop is injured but not rendered entirely worthless as a result of the acts or omissions of another, is the difference between the value at maturity of the probable crop, if there had been no injury, and the value of the actual crop at the time injured less the expense of fitting for market that portion of the probable crop which was prevented from maturing.

13. The pleadings and judgment, but not the opinion of the appellate court, may be introduced in evidence to support a plea of res judicata.

14. A litigant is entitled to have the jury instructed as to his theory of the case as shown by pleading and evidence, and a failure to do so is prejudicial error.

Bryant, Christensen & Sullivan, Wahoo, Gross, Welch, Vinardi & Kauffman, Kennedy, Holland, DeLacy & Svoboda, William P. Mueller, Malcolm D. Young, Omaha, for appellant.

John J. Edstrom, Wahoo, Nelson & Harding, Duane W. Acklie, Lincoln, for appellees.


WENKE, Justice.

On rehearing we have come to the conclusion we were in error in two areas in our original opinion herein released on October 31, 1958, and reported in 167 Neb. 251, 92 N.W.2d 708. We therefore withdraw that opinion and substitute therefor the following.

One June 10, 1954, Willy Wischmann and Alvina Wischmann, husband and wife, brought this action in the district court for Saunders County against Ralph Raikes. Willy Wischmann died on April 17, 1956, and the action, as to him, was revived in the name of Alvina Wischmann as the administratrix of his estate.

The purpose of the action is to recover monetary losses which the Wischmanns claim they suffered by reason of the loss of the use of their lands since 1945 and for injury to their crops, livestock, and fences since that time. The Wischmanns contend their losses resulted from the defendant digging channels and constructing dikes and levees on his lands whereby he unlawfully obstructed the flow on his lands of the floodwaters flowing in the flood planes of Mosquito, Wahoo, and Silver Creeks, as they cross his lands, and the natural flow of Silver Creek, and thereby causing such waters to flow over and across plaintiffs' lands where it had not been wont to flow prior to such channels being dug and dikes and levees being constructed. The trial court limited the plaintiffs' right of recovery to damages, if any, they had suffered after June 10, 1950, that being 4 years prior to the institution of this action. The jury returned a verdict for the plaintiffs in the sum of $10,000 'for loss of use of the land.'

Defendant filed both a motion for judgment notwithstanding the verdict and for new trial. He perfected this appeal from the overruling thereof. The trial court entered a judgment on the verdict for the plaintiffs.

Appellees were at all times herein material the owners of the northeast quarter and the north half of the southeast quarter, north and east of a railroad right-of-way, of Section 21, Township 13, Range 9, in Saunders County, Nebraska. Appellant was at all times herein material the owner of the northwest quarter and the northeast quarter of the southwest quarter of Section 18, all of the east half of Section 18, south and west of the railroad right-of-way, and all of the west half of Section 17, south and west of the railroad right-of-way, in Township 13, Range 9, Saunders County, Nebraska. The railroad right-of-way referred to above is the Ashland-Prague branch of the Chicago, Burlington & Quincy Railroad Company.

Appellant contends there was no sufficient and proper proof adduced to support or substantiate any of appellees' claims that any activities on his part were in fact a proximate cause of any of their claimed injuries and damage for the years in question; that is, that appellees have failed to prove any causal connection between their claimed damage and the diversion of floodwaters. The burden of proof to sustain their cause of action devolved on the appellees. However, '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 & Irr. Dist., 151 Neb. 49, 36 N.W.2d 478, 479. See, also, Stolting v. Everett, 155 Neb. 292, 51 N.W.2d 603.

On May 7, 1952, Ernest G. Bahm and Mabel E. Bahm, husband and wife, Theodore Sohl, Willy Wischmann, and Alvina Wischmann filed an action in the district court for Saunders County against Ralph Raikes. Therein the plaintiffs alleged the defendant had dug channels and erected dikes and levees on his lands that unlawfully diverted floodwaters of Mosquito, Wahoo, and Silver Creeks from the flood plane thereof over and across plaintiffs' lands and diverted the natural flow of Silver Creek from Wahoo Creek into Ab's Lake from where it flowed across plaintiffs' lands. Plaintiffs therein alleged: 'That by reason of the acts of the defendant, as herein alleged, the plaintiffs have suffered irreparable injury and damage to the lands described in paragraph I herein, have lost crops growing on said lands nad have been prevented from cultivating and farming parts of said lands; that the acts of the defendant will continue to cause irreparable injury and damage to said lands and crops.' Paragraph 'I' therein referred to describes the tracts of land owned by each of the several plaintiffs. It includes the Wischmanns' 240-acre tract. It will be observed that this is the same cause of action as pleaded herein.

The plaintiffs then prayed: '* * * that the defendant, his agents and servants, be enjoined and restrained from diverting the natural flow of Silver creek onto and upon the lands of the plaintiffs and from diverting the flow of flood waters of Wahoo, Mosquito and Silver creeks onto and upon the lands of these plaintiffs and from maintaining the dikes and levees erected and constructed as herein alleged, and that said defendant be ordered to remove said dikes and levees constructed and erected by him, his agents and servants, to return the flow of waters of Silver Creek to the course that existed at the time defendant purchased said real estate and for many years prior thereto and as herein alleged, and, with respect to the drainage of the waters of Wahoo, Mosquito and Silver creeks, to...

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