Campbell v. Youngson

Barnes, C. J. After a careful examination of our former opinion in this case (80 Neb. 322), the briefs and the arguments of counsel on the rehearing, and an extended review of the drainage law of 1881 (laws 1881, ch. 51), in the light of its provisions and subsequent legislation covering kindred subjects, we are of opinion that by the act of 1881 it was not intended to embrace the subject of overflowed lands; and especially is this so where the overflow is caused, as in the case at bar, by surface water. That this was the view taken by the legislature is made clear by the acts of 1905 [744] and 1907, which fully provide for just such a situation as arises in the case at bar. We can add nothing to the reasons given in our former opinion for enjoining the defendants from proceeding further under the present petition. The petitioner and other interested persons may, if they so desire, organize a .drainage district according to the provisions of chapter 153 of the laws of 1907, which are ample and in every way sufficient to enable them to change the channel of Dry creek and Whiskey slough, and divert the waters of those streams at the point in controversy by making a new outlet to the Platte river, and, if necessary, by damming up the old channel of Whiskey slough at and below (lie point of diversion. For the foregoing reasons, we are of opinion that we should adhere to our former judgment. Judgment accordingly. Reese, J., dissents.