Rath v. Zembleman

Ryan, C. This action was brought by the plaintiff in error for the recovery of damages which he alleged he had sustained by the defendant draining a pond in such a manner that the water therefrom ran across the premises of the plaintiff. Between the drained land and that alleged to have been injured there was a meandering draw of the length of between three and four miles. After a rainfall the flowage of water through this draw, it was alleged, was increased to and through the plaintiff’s land, whereby on one occasion his hay in such draw was destroyed. For its value this action was brought before a justice of the peace of Fillmore county, from whose judgment there was an appeal to the district court, wherein there was a verdict and judgment in favor of the defendant. On the trial it was admitted by the plaintiff, in open court, that the draw through which the water flowed from the defendant’s land to and across plaintiff’s, was a natural waterway running from Clay county, and that it had been such ever since plaintiff had occupied his premises, and that the waters from that country were drained through this ravine or draw and ran down through plaintiff’s land. In view of the holdings of this court since the trial of this case, announced in Anheuser-Busch Brewing Association v. Peterson, 41 Neb., 897, Morrissey v. Chicago, B. & Q. R. Co., 38 Neb., 406, Lincoln & B. H. R. Co. v. Sutherland, 44 Neb., 526, City of Beatrice v. Leary, 45 Neb., 149, and Jacobson v. Van Boening, 48 Neb., 80, the plaintiff in no event could have recovered damages in the face of his admissions as to the flowage and the character of the waterway which it followed. The judgment of the district court is, therefore, Affirmed.