Compton v. Elkhorn Valley Drainage District

Per Curiam. This is an action against a drainage district for damages to crops on lands within the district. Plaintiff appeals from the judgment on a verdict directed by the court against him at the conclusion of the plaintiff’s evidence. The defendant, Elkhorn Valley Drainage District, was organized in 1909 under the act of 1907. Laws 1907, ch. 153 (Comp. St. 1922, secs. 1813-1862; Comp. St. 1929, secs. 31-501 et seq.). The district comprises about 55,000 acres in Douglas and Sarpy counties, the majority being in the — 95 — former county. Plaintiff’s land, on which he alleges the damages arose, is the east three-fourths of section 21, township 15, range 10, in Douglas county. It lies in a section of land between the Platte and Elkhorn rivers, though not adjacent to either river. About 1879 the county made a road ditch on the east side of this section and another on the west side thereof. After the drainage district was organized in 1909, it asked the county board for right of way to enlarge the road ditches on the east and west sides of this section so as to make them a part of the drainage system. The county commissioners refused. The district thereupon proceeded to obtain the right through condemnation proceedings in the county court, after which in due time it enlarged and deepened these ditches, increasing their capacity by a considerable multiple. For some years they served the plan to carry other water of the system past plaintiff’s land as well as to aid in draining his land. Gradually they filled up with silt and other matter so that, according to the pleadings, and evidence offered tending to prove his allegations, in 1923, 1924 and 1925 the crops on his lands were damaged by reason of the failure of the defendant to maintain these ditches by cleaning them out so that they might continue to perform their originally intended functions. There was evidence to the effect that the ditch on the west side of the section in question was so constructed and connected with a portion of the district northwest of this land as to carry the water from approximately a square mile of watershed that formerly drained into the Elkhorn river without coming to the plaintiff’s land; and that the ditch on the east side of plaintiff’s land was so constructed and connected with a portion of the district farther north consisting of approximately 160 acres that also formerly drained into the river without coming to plaintiff’s- land. There was evidence also that when the east ditch was constructed there was. a road bridge -at the intersection at the northeast corner of section 21, under which the water coming to that point passed from the west toward the Elkhorn river. The district removed’ that bridge and filled up the — 96 — road SO' that what water theretofore went east from that point thereafter went down the enlarged ditch along the east side of plaintiff’s land. It was purposed and effected thereafter to carry all of the water reaching this northeast corner of the land from the west down the road ditch on the east side of and past plaintiff’s land along with the water that came from the north. While some auxiliary propositions are discussed by the parties in their briefs, they agree in substance that the decisive question involved here is whether the drainage district is under a legal obligation to maintain its works by cleaning out the ditches. This, also, was the understanding of the experienced trial judge, whose discussion of the matter, when he decided the proposition in the negative and instructed the jury to return a verdict for the defendant, appears in the record. In Bunting v. Oak Creek Drainage District, 99 Neb. 843, the district was also formed under the act of 1907 as amended. We affirmed a judgment for damages to plaintiff’s land, holding the district liable for damages caused by its- negligence in the construction of its works. In that case, also, it was held that damages caused unnecessarily by negligence and improper construction .cannot be anticipated and a right of action accrues therefor when the damage occurs. In Hopper v. Elkhorn Valley Drainage District, 108 Neb. 550 (same defendant as here) we affirmed a judgment for damages to crops. The second point in the syllabus says: “A drainage district corporation organized under the laws of this state, although a. local'corporation clothed with powers, of a public nature, is liable for damages caused, by its negligence in the construction or maintenance of its works.” It seems, however, in that case the damage was caused ¡by the original faulty construction of the ditch and failure to have made a dyke; that the ditch had an angle so abrupt that it would not permit the water to flow through it properly but caused refuse and debris to collect and hold the water back; and that where it emptied into the river a floodgate was so constructed that in high water the river flowed back through the'ditch and damaged Hopper’s land. — 97 — So the question of maintenance was not there involved strictly in the sense it is here understood. In Miller v. Drainage District, 112 Neb. 206 (while we noté that it arose under chapter 161, Laws 1905, or under that act as amended), we affirmed a judgment for damages to crops by flooding. The opinion holds that the district is liable “for damages caused by its negligence in the construction' or maintenance of its works.” Here, too, the fault would seem to have been in the original construction of the ditch rather than in its maintenance, for, in stating the nature of the case, the: opinion says: “The improvement was constructed partly by digging a new ditch and partly by using the natural channel of what is known as Muddy creek. The negligence alleged is that the defendant district failed to widen and clear the natural channel of Muddy creek so used as a part of the improvement; and that it was negligent in constructing the new ditch narrower and shallower at some points than others; and that the district negligently allowed drifts and debris to accumulate and remain in the old channel of Muddy creek, thus retarding the escape of the flood waters and causing them to run over and upon plaintiff’s lands doing damage to the crops thereon.” Flader v. Central Realty & Investment Co., 114 Neb. 161, was an injunction suit to prevent the construction of a dam across Oak creek. Oak Creek Drainage District and others intervened. The purpose of the dam was to divert the water of the creek into a lake owned or controlled by the original defendants. The district court denied the injunction. This court reversed the judgment. While the body of-the opinion, in reciting some of the features of the act of 1907, stated among other things' that the law imposes upon the drainage district “the duty of keeping the ditches in repair,” this, idea was not reflected in the syllabus. It was not necessary to a decision of the case and it was used by the court in argument rather than as a vital proposition of law in an action for damages for negligence between a party damaged and the drainage corporation organized under the law. — 98 — Thu-s, the cases to- which we have referred • do not seem to have passed with authority upon the question of the duty of defendant, under the statute and the law, to keep its ditches cleaned out; nor do we find anything in the statute itself which imposes- upon such a district the positive duty of cleaning out ditches- properly constructed and established ; nor was- there anything in its petition to the county board at the time the district was organized or in the proposition submitted to those having land within the proposed district that specifically bound the district when organized to maintain its ditches by cleaning them out after they were once properly constructed. Section 1 of the act (Comp-. St. 1922, sec. 1813) authorized that “a drainage district may be formed and1 may proceed as- hereinafter provided, for the purpose of inaugurating, constructing, controlling and maintaining said work or works of public improvement,” but it did not, as heretof ore stated, specifically provide that such a corporation must maintain its works. Section 20 of the act (Comp. St. 1922, sec. 1838) gave the board of directors authority to employ an engineer to “proceed according to their best judgment to carry out such work of the character mentioned in paragraph one hereof, as they deem for the public health, convenience and welfare.” Section 1848, Comp-. St. 1922, being an amendment of section 30 of the original act, provides that, there being no debts outstanding, the corporation may be dissolved by a three-fifths- vote -of the members. It seems that it was in the contemplation of the legislature that the district through its officers should be granted the responsibility of constructing the works for drainage of the lands of the district and were given the discretion to adopt and carry out proper plans- to effect that purpose, without ordinarily being required to preserve the ditches- in perpetuity after once constructed so as to effect their object. But there is a further phase of -the action that was- lost sight of by the drainage district when it neglected to- clean out these ditches and which we think was n-ot given its proper influence by the district court. Section 21, art. I of the Constitution, provides: “The property of no person — 99 — shall be -taken or -damaged for public use without just compensation therefor.” The words “or damaged” were inserted in the sentence in 1875. When the defendant collected the water from the other two watersheds that were not wont to pass near plaintiff s land and conducted them in volumes, through its ditches adjoining plaintiff’s land and when it closed up the ditch at the intersection at the northeast corner of his land so that water escaping there was forced to come down the ditch east of his land, did not the defendant assume the duty of so caring for such foreign surface waters that they would not damage plaintiff’s property? Was it not a continuing duty? If the ditches provided by the defendant failed to care for the additional burden of these foreign waters, then did the cause of damage relate back to- the original construction of the ditches upon which the defendant chose to cast the burden ? Did the legislature intend or could it give such a district a vested right to collect these waters and cast them upon plaintiff’s land merely by reason of the fact that it had condemned a right of way along the public roads for the course of the particular ditches? It has long been a uniform rule in this state that one may not'lawfully collect and by means of a ditch discharge surface water upon the land -of his neighbor to- his neighbor’s damage. Davis v. Londgreen, 8 Neb. 43; Fremont, E. & M. V. R. Co. v. Marley, 25 Neb. 138; Bunderson v. Burlington & M. R. R. Co., 43 Neb. 545; Jacobson v. Van Boening, 48 Neb. 80; O’Kieffe v. Chicago, B. & Q. R. Co., 96 Neb. 518; Keifer v. Shambaugh, 99 Neb. 709. Sometimes injunction has been allowed as the remedy to prevent the act, where injunction would be effective, and sometimes actions for damages, have been the remedy after the damages occurred and were capable of being ascertained. The right of action accrues when the damage occurs and the statute of limitations does not begin to run until then. Omaha & R. V. R. Co. v. Standen, 22 Neb. 343. Behind the rule is the provision of the Constitution that one’s property may not be damaged without compensation. The main purpose of the drainage company in condemn — 100 — ing the right of way for the road ditches on the east and west sides of section 21 was that it might enlarge them so that they would carry the drainage waters on their way. The district now contends, as we understand it, that the condemnation took into consideration all damages that plaintiff might suffer, and that therefore he is without remedy. A situation analogous in principle arose in a surface water collection and diversion and is reflected in Iske v. Missouri P. R. Co., 94 Neb. 9, 13, where this court decided the matter adversely to this contention and cited several cases as authority for the' ruling. It can readily be understood why, if the only purpose of these ditches was to care for drainage of the lands of plaintiff and others in his watershed, the district might in its discretion neglect or delay to clean them out under the letter and spirit of the drainage act. But when they bring waters into these ditches from a foreign watershed and expressly condemn the right of way in' order to carry the added burden, we do not think they are protected by their condemnation proceedings from responding in damages to the extent that this added burden caused such damage. We are of the opinion that this relates back to the original construction and the plans therefor and execution thereof, and so far as necessary to the maintenance to prevent the evil that should have been anticipated in the original construction; with the result that the district is liable for such damages to plaintiff’s crops as may be found to be caused by the surface water collected from the other watersheds and brought to his land and left there by the failure to take care of this extra burden. For the reasons stated, the judgment of the district court is reversed and the cause remanded. Reversed.