dissenting.
As common carriers of water, defendants exercised the right of eminent domain and constructed, operated and maintained canals and laterals for the purposes of irrigation. Seepage of water carried in the canals and laterals ■damaged land of plaintiffs and injured their crops without any fault of theirs. The jury so found on abundant evidence of that fact and the trial court entered judgment against ■defendants on the verdict. On appeal the majority reversed the judgment below and dismissed the action, giving the following among other reasons:
“In this state the owner of an irrigation canal or ditches is not liable to one whose land is injured by seepage from said canal or ditches, not intentionally caused by him, unless he is negligent in the construction or operation of the works. Therefore, the owner of an irrigation canal or ■ditch is not an insurer against seepage therefrom, but is liable only for negligence and intentional wrongdoing.”
In connection with pleas and proofs of damages from seepage,, plaintiffs’ action is based on the following provision of the Constitution:
“The property of no person shall be taken or damaged for public use without just compensation therefor.” Const, ■art. I, sec. 21.
The right to compensation for property so taken or ■damaged is absolute. The Constitution imposes no restriction on that right. It does not make negligence the test ■of a landowner’s right to recover damages resulting from an exercise of the power of eminent domain for the purpose ■of irrigation or for any other purpose. Neither the legislature in granting the right of eminent domain nor the court in exercising judicial power has any authority to make negligence a condition of recovering damages resulting from a violation of that part of the Bill of Rights declaring: “The property of no person shall be taken or damaged for public use without just compensation.” Plaintiffs were not legally handicapped by such a condition in an action to recover damages resulting from seepage of water carried *416in the canals and laterals' operated by defendants. The rulings announced in the opinion would permit defendants, without liability for ■ compensation, 'to destroy the entire-beneficial use of plaintiffs’ land by seepage, while conducting Waters in their canals and laterals without negligence-in construction, maintenance or operation. It was to prevent any such invasion' of property rights without compensation that the constitutional 'provision quoted was inserted in the supreme law by the people of' Nebraska. Contrary to' the opinion of the majority, the United States circuit court of appeals-, eighth circuit, Wisely declared the-law to be as follows:
“Under Const. Neb. art. I, sec. 21, providing that private-property shall not be taken or damaged for public use-without just compensation, the owner of an irrigation canal, though constructed under authority from the state for 'a public service, -and maintained and operated in a lawful and careful manner, is liable for damage caused to-the land of another as -a necessary effect of such operation.” Hooker v. Farmers Irrigation District, 272 Fed. 600.
The case cited was one to recover- damages resulting-from seepage of waters conveyed in canals for purposes of' irrigation. It arose under the laws of 'Nebraska and the-decision gave effect to the identical constitutional provision-now under consideration. ' In the course- of the opinion, which was delivered by Judge Sanborn, it was said:
“If the plaintiff sustained damage, as in our opinion there is substantial evidence here tending to prove, jby the temporary negligence of the defendant to so maintain, operate, and use its canal as not to injure plaintiff’s property, it is liable on account of its negligence to pay that ’damage. * * * If, on the other hand, the defendant has inflicted damage upon the property of the plaintiff that is the necessary effect of- its permanent maintenance and operation of this-canal in a lawful' and careful' manner, which the state has authorized it to do for the public use, it is liable to pay this' damage to the plaintiff because the infliction of such damage without compensation is a violation of the con*417stitutional prohibition against the taking or damaging of private property for public use without just compensation therefor. Constitution of Nebraska, art. I, sec. 21; Omaha & N. P. R. Co. v. Janecek, 30 Neb. 276, 27 Am. St. Rep. 399; Pumpelly v. Green Bay Co., 80 U. S. 166, 167, 177, 179, 181, 20 L. Ed. 557; United States v. Lynah, 188 U. S. 445, 469, 471, 47 L. Ed. 539; Bramlette v. Louisville & N. R. Co., 113 Ky. 300; Jaynes v. Omaha Street R. Co., 53 Neb. 631, 641, 649, 650, 39 L. R. A. 751; Middelkamp v. Bessemer Irrigating Ditch Co., 46 Colo. 102, 23 L. R. A. n. s. 795.”
The rule announced by Judge Sanborn is in harmony with former opinions of the supreme court of Nebraska. In Stehr v. Mason City & Ft. D. R. Co., 77 Neb. 641, it was held:
“Damages recoverable properly include all damages arising from the exercise of eminent domain which cause a diminution in the value of the property.”
This ruling does not make negligence a condition of recovery. In City of Omaha v. Kramer, 25 Neb. 489, the court said:
“Constitutional guarantees are of little avail unless carried out in the spirit in which they were framed, and no plea of public benefits should be permitted to impoverish the owner of private property, or override a plain constitutional inhibition.”
These views of the law necessarily lead to the conclusion that the decision of the majority is unsound.