Opinion
No. 34368.
Filed June 26, 1959.
1. Judgments. 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. Waters. 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. Judgments. 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. Actions. 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. Equity. 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. Damages: Trial. 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. Damages. 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. Crops: Damages. 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. Judgments. 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. Trial: Appeal and Error. 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.
APPEAL from the district court for Saunders County: JOHN D. ZEILINGER, JUDGE. On rehearing. See 167 Neb. 251, 92 N.W.2d 708, for original opinion. Original opinion withdrawn. Reversed and remanded.
Kennedy, Holland, DeLacy Svoboda, Gross, Welch, Vinardi Kauffman, Malcolm D. Young, William P. Mueller, and Bryant, Christensen Sullivan, for appellant.
John J. Edstrom, Nelson Harding, and Duane W. Acklie, for appellees.
Heard before SIMMONS, C. J., CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.
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.
On 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. 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 also 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 and 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 restore his said lands to the same level and condition as at the time said lands were purchased by said defendant and before said dikes and levees were erected and constructed and as they had existed for many years prior thereto, and to open the natural course of Silver creek as the same existed on the lands of the defendant at the time said lands were purchased by said defendant and for many years prior thereto. Plaintiffs further pray * * * for such other and further relief and orders as may in equity be required."
An answer was filed thereto by Raikes and issues joined. Trial was had in December 1953, and January 1954. On February 15, 1954, the trial court rendered its decree finding generally for the plaintiffs and specifically: "That the defendant has diverted the flow of Silver creek from its natural course so that it now flows over and across the lands of the plaintiffs and where it would not flow, but for the work of the defendant; that the defendant has obstructed the flood channel across his land and diverted the flow of flood waters from Mosquito creek, Silver creek and Wahoo creek from the natural flood channel and onto the lands of the plaintiffs. That plaintiffs have suffered irreparable injury. That plaintiffs will continue to suffer irreparable injury if the defendant is permitted to maintain the dikes constructed by him and to continue to divert the flow of Silver creek from its natural course and to continue to divert the flow of flood waters from said creeks onto the lands of the plaintiffs." To prevent such injury from continuing the trial court ordered Raikes to do certain things to restore the situation to its former status and then ordered: "* * * that defendant be, and he hereby is, enjoined from maintaining the dikes along the present courses of Wahoo and Mosquito creeks which are above ordered to be removed and from diverting the natural flow of Silver creek and from diverting the flow of flood waters of Wahoo creek, Mosquito creek and Silver creek from the flood channels west and south of Wahoo creek as it flows through said lands of the defendant."
Raikes appealed therefrom to this court. We affirmed the judgment of the trial court. Bahm v. Raikes, 160 Neb. 503, 70 N.W.2d 507. Therein we held: "The appellant (Raikes) obstructed and changed the action and course of the floodwater of Mosquito Creek and of the flood plane thereof. * * * he obstructed the flood plane of Wahoo Creek and interfered with the action and course of water therein, * * *" and diverted "water that would have gone down Silver Creek before appellant had made transformations in the area and to conduct and force it toward the southeast north of the land of appellant through Ab's Lake and on to the east. This was a clear diversion of the water of Silver Creek from the course of its natural flow. * * * He farmed and got a crop from his land each year before 1944. His land has been substantially made unfit for cultivation and production."
As already indicated this action against appellant is upon the same factual situation as was involved in Bahm v. Raikes, supra. Among the allegations of appellees' amended and supplemental petition, on which the case was tried, are the petition, judgment, and affirmance of this court of Bahm v. Raikes, supra, appellees contending: "* * * the findings of the District Court of Saunders County, Nebraska, * * * are final and conclusive and binding upon the defendant in this action."
"`It is a fundamental principle of jurisprudence that material facts or questions which were in 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.'" Blum v. Truelsen, 139 Neb. 282 297 N.W. 136.
Under the principle stated in Johnson v. Marsh, 146 Neb. 257, 19 N.W.2d 366, as hereinafter set forth, the appellees herein are entitled, under the foregoing principle, to the legal effect of our holding in Bahm v. Raikes, supra, that: "His (Willy Wischmann's) land (240 acres) has been substantially made unfit for cultivation and production." The principle stated in Johnson v. Marsh, supra, is as follows: "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." As stated in Cover v. Platte Valley Public Power Irr. Dist., 162 Neb. 146, 75 N.W.2d 661: "In the light of such rule plaintiff argued that the trial court erred prejudicially in refusing to examine its own records and take judicial notice of its own proceedings, and the judgments rendered by that court and this court on appeal in Faught v. Platte Valley Public Power Irr. Dist., supra, an interwoven and interdependent case in which defendant was a party. We sustain that contention. In such case not only the same trial court, but also this court on appeal, held that the very same 42-inch drain here involved was inadequate and that defendant was negligent in constructing and maintaining same. That question has been finally decided and could not properly be again submitted to a jury for it to determine whether or not the trial court and this court were correct in making such a decision. Therefore, the trial court erred prejudicially in failing and refusing to instruct the jury as a matter of law that defendant was negligent as alleged by plaintiff. To hold otherwise would be a travesty upon justice and permit a trifling with judgments duly rendered according to law. On the other hand, as a matter of course, the trial court should have told the jury that the burden was upon plaintiff to prove by a preponderance of the evidence that plaintiff's damages were proximately caused by such negligence of defendant, and the amount of plaintiff's damages." The foregoing has application here. See, also, Anderson v. Anderson, 155 Neb. 1, 50 N.W.2d 224.
There was evidence produced in this case, as well as in the case of Bahm v. Raikes, supra, to the effect that the silting on, eroding of, depositing of debris on, and the wetness of the Wischmann land, which made it unfit for cultivation and production since 1944, all resulted from what Raikes had unlawfully done. There was evidence herein adduced to the effect that this condition of appellees' land continued and did not start to improve until after Raikes removed the things that caused it. This he did sometime after our mandate, dated October 17, 1955, went down based on our opinion of June 3, 1955, as is evidenced by his answer filed herein on October 18, 1956.
Appellee Alvina Wischmann and her son Donald both testified it was because of this unfit condition of the land that during the years from 1950 through 1956 either all or part of the cultivated lands in the low areas of the Wischmann 240 acres could not be planted to crops. They also testified to the effect that these conditions destroyed the hay meadow and pasture so they were not fit for use. This evidence is sufficient to justify a jury finding a causal connection between what appellant unlawfully did and appellees' damages, that is, that it was the proximate cause thereof. We were in error in holding that it was not.
Appellant contends that because a trial was had in the district court for Saunders County in December 1953 and January 1954, upon the same cause of action, wherein an injunction therein prayed for by appellees was granted against the appellant, that the appellees, since they were plaintiffs therein, are now barred from maintaining this proceeding asking for monetary recovery based on damage suffered during the same period of time as was involved in the foregoing injunction proceedings. He contends the law is well settled that one is not allowed to split his cause of action; that is, if he might have had the relief he now seeks in an action he had previously brought and prosecuted to final judgment he may not again vex his former adversary with another suit based upon the same wrong, contending he is entitled to have the issues in this case limited to all damages, if any, which plaintiff sustained after February 15, 1954.
As a basis for our holding in Bahm v. Raikes, supra, we cited the following authority: "In Ballmer v. Smith, 158 Neb. 495, 63 N.W.2d 862, the court said: `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.'
"It is beyond the area of argument in this state that a riparian owner may not dam, obstruct, or dike against floodwaters of a running stream to the injury of a lower landowner. Ballmer v. Smith, supra; Frese v. Michalec, 148 Neb. 567, 28 N.W.2d 197." It will be observed that what was sought to be enjoined must result in injury or damage to the party seeking relief therefrom, and both parties agree that such is the law. See, also, Brchan v. The Crete Mills, 155 Neb. 505, 52 N.W.2d 333. Plaintiffs therein, which included the Wischmanns (appellees herein), alleged and proved, as a necessary element of their cause of action on which they based their right to enjoin, that what Ralph Raikes (appellant herein) had done and was doing was damaging and injuring their lands and crops.
On June 10, 1954, the Wischmanns brought this action against Raikes in the district court for Saunders County upon the same factual situation as was involved in Bahm v. Raikes, supra. The only difference between that case and the one before us, insofar as the Wischmanns are concerned, is that in the former action injunctive relief was sought whereas herein monetary relief is asked, both based on the fact that what Raikes did injured or damaged the Wischmanns' lands and personal property. It will thus be observed that injury or damage to their property because of what Raikes did is the basis upon which the Wischmanns claim certain rights in each of the two cases. There is no question but what the Wischmanns could have obtained both types of relief in the original action had they seen fit to do so. See, Brchan v. The Crete Mills, supra; Armbruster v. Stanton-Pilger Drainage Dist., 165 Neb. 459, 86 N.W.2d 56. The question here is, can they split such cause of action and in separate actions ask for two different types of relief when each type of relief is fundamentally based on the same facts or cause of action?
We said in Anderson v. Anderson, supra, that: "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. Kuhns v. Live Stock Nat. Bank, 138 Neb. 797, 295 N.W. 818. A litigant, if he might have had all of the relief he seeks in an action he has brought and prosecuted to final judgment, may not again vex his former adversary with another suit based on the same wrong. If a matter becomes the subject of litigation and is adjudicated, the law requires the parties to bring forward their whole case and will not generally permit the same parties to open the same subject of litigation in respect to a matter which might have been brought forward as a part of the subject contested but which was omitted as a part of the case. 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. 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." See, also, Wightman v. City of Wayne, 148 Neb. 700, 28 N.W.2d 575; National City Bank of Cleveland v. Jones, 149 Neb. 844, 32 N.W.2d 755; Triska v. Miller, 86 Neb. 503, 125 N.W. 1070; Wightman v. City of Wayne, 144 Neb. 871, 15 N.W.2d 78; Williams v. Beckmark, 150 Neb. 100, 33 N.W.2d 352; Pettijohn v. County of Furnas, 150 Neb. 736, 35 N.W.2d 828. See also the numerous cases of this court reported under Key No. 713(2), Judgment, Nebraska Digest, under "Matters which might have been litigated."
We have also held: "`Any right, fact or matter in issue, and directly adjudicated upon, or necessarily involved in, the determination of an action before a competent court in which a judgment or decree is rendered upon the merits is conclusively settled by the judgment therein and cannot again be litigated between the parties and privies whether the claim or demand, purpose, or subject-matter of the two suits is the same or not.'" Wheeler v. Brady, 126 Neb. 297, 253 N.W. 338. See, also, Morrell v. Towle, 141 Neb. 370, 3 N.W.2d 655.
The basis for the breadth of this rule is the fact that in this state there has been a complete merger of legal and equitable remedies. Since 1867, what is now section 25-101, R.R.S. 1943, has provided: "The distinctions between actions at law and suits in equity, and the forms of all such actions and suits heretofore existing, are abolished; and in their place there shall be hereafter but one form of action, which shall be called a `civil action.'"
Under our system of code pleading, a plaintiff is required to plead only the facts and it is the duty of the court to award him any relief, either legal or equitable, to which he is entitled thereunder. The defendant likewise may set up any defense he may have, legal or equitable, and court is required to grant him any relief to which he may be entitled. As held in Hopkins v. Washington County, 56 Neb. 596, 77 N.W. 53: "In this state there is but one form of action, to be called a `civil action,' * * * in which either relief may be sought and obtained; and if the facts pleaded and proved demand, the rules of either law or equity, or both, may be enforced." See, also, City of Beatrice v. Gage County, 130 Neb. 850, 266 N.W. 777.
In view of this situation the following "Comment" from Restatement, Judgments, 66, p. 282, has application: "Where the plaintiff brings a suit in equity to enjoin the continuance of a tort, and a decree is given in his favor granting the injunction, it depends upon the extent to which there is a merger of legal and equitable remedies in the particular State whether the plaintiff is precluded from thereafter maintaining an action at law to recover damages resulting from the tort prior to the bringing of the suit or the rendition of the decree. * * * If the court of equity could properly award damages but the plaintiff did not seek to recover damages in the suit, whether he can thereafter maintain an action at law to recover damages depends upon the extent to which legal and equitable remedies are merged in the State in which the suit was brought. In some States, although a court of equity may award damages, there is not such a merger of legal and equitable remedies that the plaintiff is compelled to seek damages in the equitable proceeding or be precluded from thereafter seeking damages in an action at law; in such States if the plaintiff brings a suit in equity to enjoin the continuance of a tort and does not seek damages which he has suffered from the tort, he is not precluded from thereafter maintaining an action at law to recover damages. In States, however, in which there is a more complete merger of legal and equitable remedies, the plaintiff is compelled to seek in the equity proceeding whatever damages he may be entitled to, and if he makes no demand for damages he is precluded from thereafter maintaining an action at law to recover damages." (Emphasis ours.) See, also, 2 Freeman on Judgments (5th Ed.), 593, p. 1250.
In 26 A.L.R. 2d 446, there will be found a recent annotation on the subject "Decree granting or refusing injunction as res judicata in action for damages in relation to matter concerning which injunction was asked in first suit." On page 452 thereof, under section 5, will be found the case of Ledingham v. Farmers Irr. Dist., 135 Neb. 276, 281 N.W. 20, while on page 460, under section 9, appears the case of Shepard v. City of Friend, 141 Neb. 866, 5 N.W.2d 108. The annotation would indicate these cases come to opposite conclusions.
On March 11, 1937, Cora M. Hall, H. F. M. Hall, Lulu Kreiling, Cecile E. Shepard, Frank Olmsted, and Bert Cain brought an action in the district court for Saline County against the City of Friend by which they sought to enjoin the city from disposing of the waste water from its sewage disposal plant into a natural drain or watercourse which flowed across plaintiffs' lands, claiming that by doing so the city was irreparably injuring and damaging their lands and property. The plaintiffs also prayed for such other and different relief as to the court may seem just but did not ask for monetary damages as such. That is the same situation as was involved in the original action brought in Saunders County involving this litigation. The trial court in the Saline County case found that noxious odors emanated from the low places on plaintiffs' land caused by the water being allowed to flow thereon from the City of Friend's sewage disposal plant but found there were no other damages caused to plaintiffs' lands by the flow of water therefrom. The city was given 90 days in which to correct such odor by proper chemical treatment and did so. On appeal to this court we affirmed the trial court's judgment. Hall v. City of Friend, 134 Neb. 652, 279 N.W. 346. One of the bases for denying the injunction is stated therein as follows: "Under the facts in this case, the erection of a sewage disposal plant having been properly done, without negligence, it will be held to be a lawful exercise of power that equity will not restrain." We therein set out that: "In Stuhr v. City of Grand Island, 120 Neb. 491, 233 N.W. 886, it was held: `While a court of equity may enjoin such manner of construction or operation of a sewer system as causes or results in a nuisance, yet it will not perpetually enjoin the construction or operation of the system if so changed as not to cause or create a nuisance.'"
On March 29, 1939, Cecile E. Shepard, Cora M. Hall, H. F. M. Hall, and Lulu Kreiling filed their second amended petition in an action in the district court for Saline County against the City of Friend in which they sought to recover monetary losses from the city for damage to their lands and property based on the same factual situation as in the former suit. The trial court found the defense of res judicata should be sustained and dismissed the action. On appeal we affirmed the trial court's holding. Shepard v. City of Friend, supra. Therein we said: "On the facts pleaded in the former action the plaintiffs had available two remedies, namely, injunction and damages, provided, of course, that they sustained the allegations of fact. They sought only injunction. They failed to sustain their allegations of fact, hence, there having been no mistake of remedy, under the doctrine of res adjudicata they are estopped to assert the same facts in support of an additional and concurrent remedy which is dependent solely upon those facts.
"The fact that the plaintiffs did not seek to recover damages in the former action is not a matter to be considered of consequence here. The rule is that a party should not be vexed more than once for the same cause of action, and the doctrine of res adjudicata includes not only the things which were determined in the former suit, but also any other matter properly involved which might have been raised and determined therein."
As stated in Gilbert v. Boak Fish Co., 86 Minn. 365, 90 N.W. 767, 58 L.R.A. 735, which we cited in Brchan v. The Crete Mills, supra: "`An action for abatement and injunction necessarily includes damages, substantial or nominal, and, if the pleader is entitled to the former, it is for him to frame his complaint accordingly. Failing in this, he waives them, for to permit him to afterwards maintain a separate suit therefor is to permit the splitting up of a cause of action.'" The court goes on to say: "We think the reasoning of that case is decisive of this action, and that the facts set forth in the complaint in the prior action constitute one cause of action, though it embraced two elements: First, the discontinuance of the nuisance; and, second, the damages incident thereto."
In Ledingham v. Farmers Irr. Dist., supra, we said: "This is an action by William Ledingham, plaintiff, to recover from the Farmers Irrigation District, defendant, $3,500 in damages to growing crops by its failure to deliver to him from the North Platte river, through its canal, the quantity of irrigating water to which he was entitled during July, August and September, 1934, under his appropriation and vested contract right. * * * It pleaded also that a former suit barred the present action." We then said: "Defendant urges the further defense that the cause of action in which equitable relief was granted to plaintiff in the former suit necessarily included the damages allowed herein and precluded recovery therefor in the action at bar. It is argued that the entire controversy involving the equitable relief granted and the subsequent recovery of damages in the present action at law was determinable in the former suit in equity and that the splitting of what defendant calls a single cause of action is condemned as wholly untenable." We then held: "As already pointed out, the remedy sought was a determination of the quantity of water to which plaintiff is entitled under his appropriation and a permanent injunction to prevent defendant from invading his vested contract rights to specific quantities of water for purposes of irrigation. Damages were not pleaded, presented, proved or determined in the former case. There is some diversity of judicial opinion on this subject in vast fields of litigation, but the better view seems to be that, in a situation like the present, the granting of an injunction is not necessarily a bar to an action at law for damages caused by the wrong enjoined." (Emphasis ours.)
This cause first came to this court as reported in Vonburg v. Farmers Irr. Dist., 128 Neb. 748, 260 N.W. 383. Therein we said: "This is an action for injunction and other equitable relief. * * * The following is a brief summary of the pertinent facts alleged in the petition: Each of the plaintiffs is the owner of land that has been regularly irrigated for more than 40 years from water furnished through a canal which is now owned by the defendant corporation. Plaintiffs claim the right to a continuation of this service under and pursuant to a prior appropriation of the water and to contracts entered into between them and the Farmers Canal Company, a former owner of the canal, and without being compelled to prorate the water in the canal with other patrons of the defendant corporation. * * * We are of the opinion that the present controversy hinges on the question of whether plaintiffs, by their contracts and under the law as then existing, acquired a vested right to the quantity of water for which their contracts call. * * * It follows that, if their rights are superior, then they are entitled to the water in preference to the subsequently acquired patrons of the defendant corporation." Then, in Vonburg v. Farmers Irr. Dist., 132 Neb. 12, 270 N.W. 835, which involves the same action, we said: "We therefore conclude that the original stockholders had a property right vested in them to the extent of the water claimed in their several contracts and such property right might be sold and disposed of as any other property under the law as it then existed." It thus becomes evident that there is a distinction between the Ledingham case and the City of Friend case by reason of the fact that injury or damage was no part of the cause of action in the Ledingham case and did not properly belong to the subject of that litigation.
In view of our frequent holding, as evidenced by the many cases cited herein and under Key No. 713(2), Judgment, in the Nebraska Digest, to the effect that a party should not be vexed more than once for the same cause of action, and the doctrine of res judicata includes not only the things which were determined in the former suit, but also any other matter properly involved which might have been raised and determined, we do not think appellees should be allowed to split their cause of action by filing two suits for different types of relief when such relief all flows from the same cause of action and could have been sought therein.
Appellees contend that because there were five different parties plaintiff in the prior equity matter it would have been impossible to adjudicate appellees' claim for damages because each plaintiff's claim would have been a separate cause of action not affecting the others. Based thereon appellees contend they should not be precluded here.
In Brchan v. The Crete Mills, supra, by quoting from Schreiner v. Witte, 143 Neb. 109, 8 N.W.2d 831, we restated the oft-announced principle that: "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." We then went on to say that: "In the case of Mitchell Realty Co. v. City of West Allis, 184 Wis. 352, 199 N.W. 390, 35 A.L.R. 396, a suit brought against eight defendants to abate a nuisance caused by the pollution of a stream, and recover damages, upon motion of the defendants, allegations as to damages were stricken. The court said: `Under the doctrine well established by this court, if a court of equity takes jurisdiction of a matter it will retain jurisdiction for the purpose of doing complete justice between the parties, and will, in a proper case, not only extend its equitable remedy but will also permit the recovery of damages.' The court overruled the order of the trial court in striking the plaintiff's allegations as to damages, holding: `Had the action proceeded, the plaintiffs could have obtained their equitable remedy for the abatement of the nuisance, and, upon the determination by the court of the proportionate share of the damage caused by each of the defendants, were entitled to judgment for such amounts, thus disposing of the entire litigation in one action. To accomplish such a result is one of the principal functions of a court of equity.' See, also, McMechen v. Hitchman-Glendale Consolidated Coal Co., 88 W. Va. 633, 107 S.E. 480; Gilbert v. Boak Fish Co., 86 Minn. 365, 90 N.W. 767, 58 L.R.A. 735; Stoner v. Mau, 11 Wyo. 366, 72 P. 193; Carthew v. City of Platteville, 157 Wis. 322, 147 N.W. 375; Karns v. Allen, 135 Wis. 48, 115 N.W. 357, 15 Ann. Cas. 543.
"With reference also to the recovery of damages, damages to personal property located on the real estate may also be recovered in this equity action. See, Graham v. Pantel Realty Co., supra; Weingand v. City of North Platte, supra; Stoner v. Mau, supra.
"It is apparent that damages recoverable in an action of this kind are not limited to damages to the real estate alone, but include damages to personal property located thereon." The foregoing has application to the rights which the several plaintiffs had to recover their damages, if any, in the original injunction action.
"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 entered." Conrad v. Kaup, 137 Neb. 900, 291 N.W. 687. See, also, Stocker v. Wells, 150 Neb. 51, 33 N.W.2d 445; Propst v. Board of Educational Lands Funds, 156 Neb. 226, 55 N.W.2d 653; Comminge Geisler v. Stevenson, 76 Tex. 642, 13 S.W. 556. The decree in the original injunction action was rendered on February 15, 1954.
We find appellees have precluded themselves from claiming any monetary loss for damages they may have suffered prior to February 15, 1954, by failing to ask for such in their original action.
Appellant also pleaded the statute of limitations. By the allegations of their amended and supplemental petition the appellees sought to recover monetary benefits from 1945 forward for damages, if any, which they had suffered. The trial court limited such right to June 10, 1950, or a 4-year period prior to the bringing of this action. "A temporary injury is defined in 32 C.J. 521, as `An injury that may be abated or discontinued at any time, either by the act of the wrongdoer, or by the injured party.'" Applegate v. Platte Valley Public Power Irr. Dist., 136 Neb. 280, 285 N.W. 585. That was the appellant's position with reference to what he had done. As stated in Omaha R. V. R.R. Co. v. Standen, 22 Neb. 343, 35 N.W. 183: "* * * where damages result from a continuing nuisance * * * a recovery may be had for each injury as it occurs." However, recovery could only be had for a period of 4 years from the time each of such causes of action accrued. 25-207, R.R.S. 1943. Any further discussion of this subject would, however, serve no useful purpose as we have already come to the conclusion that appellees have precluded themselves of the right to recover for any damages to their lands or personal property prior to February 15, 1954. To recover monetary losses for 1954, and any years subsequent thereto, because of the unfit condition of their lands for cultivation and other uses, the appellees must adduce evidence from which a jury could properly find that the conditions existing prior thereto continued after February 15, 1954, and were caused by what appellant had unlawfully done; that damages, if any, which they suffered were caused thereby; and, if so, the value thereof.
In view of the foregoing it becomes necessary to reverse the judgment of the trial court and set aside the verdict for the jury was erroneously permitted to consider damages, if any, accruing to the appellees in the years of 1950, 1951, 1952, and 1953, However, there are some other questions raised which will reappear on retrial so we discuss them briefly.
"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 they should take into consideration in arriving at their verdict, otherwise the jury may be confused and misled." Linch v. Hartford Fire Ins. Co., 138 Neb. 110, 292 N.W. 27, 129 A.L.R. 1063. See, also, Benedict v. Epply Hotel Co., 159 Neb. 23, 65 N.W.2d 224.
As to the loss of the use of ground that had formerly been cultivated and planted to crops, which is the principal claim here, the usual rule is that: "`If plaintiff was prevented from planting any part of his lands by reason of flooding due to negligence of defendant, his measure of damages on this account would be the reasonable rental value of such land for that season, * * *.'" Hopper v. Elkhorn Valley Drainage Dist., 108 Neb. 550, 188 N.W. 239. See, also, Franklin Drilling Co. v. Jackson, 202 Okla. 687, 217 P.2d 816. However, as stated in Gledhill v. State, 123 Neb. 726, 243 N.W. 909: "In the instant case, the plaintiff's claim is represented by the loss of the use of the land for the crop season for 1929. * * * `The question of whether damages based on the result of an unmatured crop are speculative must be determined by whether there is sufficient data to determine with reasonable certainty the probable value it would have had if matured.' 17 C. J. 785. The determination of the value of the loss of the use of this land can be made almost certain in this case if based upon the evidence of the value of the crop which could have been raised upon this land but for the flood. * * * The best available test of the value of the use of the land to the lessee is the value of the crops which could and would have been grown upon this land, particularly where it is removed from speculation and remoteness and made definite and certain by proof as to what portions of the land and similar adjoining land produced." The court went on to say: "When there is evidence of the actual value of other matured crops of a like kind grown during the same period, in portions of the same or adjoining land under similar conditions there is sufficient data to determine with reasonable certainty the probable value of an unmatured crop if it had matured. * * * In this case, there was nothing left to conjecture or speculation as to the probability of the crop or the extent of it dependent upon the rainfall or unfavorable conditions. Every element surrounding the production of a crop was then known and was applicable alike to the land that was flooded and that which was not. The trial court made this finding: `The court further finds that said lands so flooded, set apart for the raising of corn in 1929, but for said flooding would have produced an average of 50 bushels per acre, of the value of 90 cents a bushel, and that the cost of raising, harvesting and marketing an acre thereof was $11.75.' In this particular case, there is no more accurate way of determining either the rental value or the value of the use than the determination made in this case from the evidence. The evidence is direct and certain that the owner of this land lost the amount calculated upon this basis from the flooding of the land." (Emphasis ours.) Which principle a court should apply when instructing the jury will depend on the evidence adduced at the trial.
As to the loss of a perennial crop, such as a hay meadow or pasture, the rule is as stated in Hopper v. Elkhorn Valley Drainage Dist., supra: "`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.'" See, also, Faught v. Platte Valley Public Power Irr. Dist., 147 Neb. 1032, 25 N.W.2d 889; McKee v. Chicago, B. Q. R.R. Co., 93 Neb. 294, 140 N.W. 145; Faught v. Dawson County Irr. Co., 146 Neb. 274, 19 N.W.2d 358.
As to any crop that may have been injured, but not entirely destroyed, the rule is: "The measure of damages where 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." Gable v. Pathfinder Irr. Dist., 159 Neb. 778, 68 N.W.2d 500.
Appellant contends the admission into evidence of the opinion of this court in Bahm v. Raikes, supra, and the reading of same to a jury in its entirety, constitutes error. Also that the court committed error in the admission of the petition, answer, and decree of the trial court and motion for new trial filed by defendant in the same action. With this we agree. In fact, the trial court went so far as to include in his instruction No. 1 to the jury the decree of the trial court in its entirety.
Under the plea of res judicata the pleadings and judgment relied on in support thereof may properly be introduced in evidence but not the opinion of the appellate court relating thereto. See Reams v. Clopine, 121 Neb. 86, 236 N.W. 158.
As stated in Reams v. Clopine, supra: "The pleadings and judgment, but not the opinion of the appellate court, may be introduced in evidence to support a plea of res judicata." However, under the circumstances here shown, that would not be necessary because the trial court was duty bound to take judicial notice thereof. See Cover v. Platte Valley Public Power Irr. Dist., supra. In such circumstances it is the trial court's duty to determine the legal effect thereof and, if necessary, instruct the jury in regard thereto. The legal effect thereof is not a question for a jury to determine. Otherwise, where a plea of res judicata is made, the pleadings and judgment relied on must be introduced in evidence for the benefit of the trial court in order for it to determine the legal effect thereof.
Appellant contends several of the instructions given by the court erroneously submitted the case to the jury. "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." McKain v. Platte Valley Public Power Irr. Dist., 151 Neb. 497, 37 N.W.2d 923.
Some of the contentions in regard to instructions are clarified by what has been held herein. Others relate to issues which it will no longer be found necessary to submit. The rest of the contentions herein made by either side we do not find it necessary to discuss and answer in view of what has been held herein.
We reverse the judgment of the trial court and remand the cause with directions to sustain the appellant's motion for new trial.
REVERSED AND REMANDED.