dissenting.
The concept of damage in the constitutional sense is distinctly different when the flow of a watercourse is affected. See 2 Nichols, Eminent Domain (3d Ed.), § 6.446, p. 607. The problem of the liability of a municipality or other governmental subdivision in connection with flood protection measures, such as those involved here, has received widely varying treatment. See Annotation, 5 A. L. R. 2d 57.
This court has previously held that whatever may be, done by an upper riparian landowner in the protection and improvement of his land may be done by a legally organized sanitary drainage district. See Cooper v. Sanitary Dist. No. 1, 146 Neb. 412, 19 N. W. 2d 619. In that case, as in this one, there was evidence that the plaintiff’s land would be, and had been, flooded by the watercourse in a state of nature. There was specific *660evidence in the Cooper case, that the plaintiff’s land would have been flooded for a longer time and to a greater depth if the flood control works of the defendant had never been constructed. This court said in the Cooper case: “* * * the burden is upon the plaintiffs to show the extent of the increased overflow and the amount of damages arising therefrom. There is no attempt made in the present record to make such an allocation of damages. This fact, coupled with our finding that plaintiffs’ land would have been flooded whether the works of the defendant were built or not, is sufficient to defeat the judgment.”
In the present case, not only is it established that no flooding whatever has occurred since the defendant’s construction, but there is a complete absence of any evidence to show the possible or probable extent of any future increased overflow, the additional amount of time it would remain on plaintiff’s land, or the increased damage, if any, that it might cause.
Evidence that the market value, of plaintiff’s land has decreased and that the decrease is related to governmental construction on lands other than the plaintiffs should not be sufficient to establish a taking or damaging of plaintiff’s property under Article I, section 21, of the Constitution of Nebraska.