The opinion
*783 Yeager, J.,
dissenting.
I concur in the dissent of Simmons, C. J., which has been filed in this case. I also dissent from that phase of the majority opinion which rejects the opinion originally adopted herein.
I shall direct my remarks first, not in repetitioh of what has been said in the dissent of Simmons, C. J., but to the disclosure of the reasonably anticipated consequences of the majority opinion. I take the view that this majority opinion, in addition to its own immediate mischief, contains the potential for broad and far-reaching mischief and confusion which will inevitably rise to plague the bench and the bar. This mischief , may be readily demonstrated by some pertinent observations and related questions.
If this opinion is allowed to stand, what becomes of the right to trial by jury? Is the right to trial by jury abolished in cases where equitable and legal rights must be asserted in the same action? If a jury is to be called, must there be one hearing without the. jury and another with one in attendance? . If a jury is to be called, must it be done as a matter of right of the parties, or must there be a demand in order to secure a jury, and if no demand is made, is it necessary that this be regarded as a waiver? These are all questions which have not been answered which will require answers if this departure from traditional, well-established, and long-uninterrupted procedures is allowed to obtain.
Assuming that as regards the matters involved in this case and in Bahm v. Raikes, 160 Neb. 503 , 70 N. W. 2d 507 , the plaintiffs in Bahm v. Raikes, supra, had instituted action at law for damages instead of an action in equity to have destroyed the causative factor and had succeeded in recovering damages, but the causative factor was continued, would they, because1 they did not join their equitable right with their legal right, be barred from separate action in equity thereáfter to have élim *784 inated the causative factor? Would the action at law be res judicata of an action in equity?
The majority opinion holds that the decree in Bahm v. Raikes, supra, since no claim for damages was presented in that case, is res judicata and prohibits an action for damages caused by the wrongful acts of defendant which were enjoined. Despite this, however, it grants the right to assert that part of the pleaded cause of action relating to the period after February 1954. If the decree became res judicata for the reasons given in the majority opinion, why is it hot res judicata as to the period after February 1954 as well as before? If the theory presented by the majority opinion is correct, does not consistency require the application of the rule to all periods? The relief sought in Bahm v. Raikes, supra, had reference to a situation involving past, present, and future injury and damage growing out of an existing and continuing condition. Wherein lies the power of this court to make a separation and division of this claim or rather failure to assert a claim? Other questions of related character could be asked but I think these are sufficient to demonstrate my concern.
I do not know what the answers to these questions should be and I decline to try to predict what they will be, but I am sure that the mischief and confusion which they foreshadow can all be avoided, without price or sacrifice in the area of either law or equity, by adherence to the principles set forth in Wilcox v. Saunders, 4 Neb. 569 , and consistently and assiduously adhered to thereafter until the adoption of the majority opinion in this case.
From this it becomes clear that I do not think that the majority opinion contains a proper basis for the •decision in this case.
I am still convinced that the opinion which has been rejected contains the proper basis for consideration of the .case by this court, and further that the ultimate conclusion and decision outlined therein is the only one *785 which is capable of support on the record made at the trial in the district court.
It was asserted in that opinion that there was no proof of causal connection between the damage alleged by the plaintiffs in their pleaded cause of action and any act or failure to act on the part of the defendant. That assertion is repeated herein. The authenticity of this assertion is challenged by the present majority opinion, but significantly only in general terms. There has been no effort to point to evidence from the witnesses, or otherwise, the legal substance of which is to say that the particular damage occurring within the period not excluded by the statute of limitations was caused by any act or failure to act on the part of the defendant. It is true that there is evidence of damage from water, but there was not even an effort made on the trial to trace the source of the water back to any act or failure to act on the part of the defendant. In this connection the following is repeated from the rejected opinion: “Inexplicably, however, the plaintiffs failed to offer any testimony or other evidence that any of these things were caused or came about by reason of the matters charged against the defendant in Bahm v. Raikes, supra, which was prohibited or commanded by the adjudication in that case, or that they were caused by any other act of omission or commission on his part.”
Despite the statements made in the majority opinion, with assurance I rest my statements on what appears, or more correctly does not appear, in the bill of exceptions.
It is of course true that thére was evidence of a general nature on the trial of the case that over a long period of years works of the defendant caused damage to lands and crops of the plaintiffs. It is likewise true that in Bahm v. Raikes, supra, there was evidence, the result of which came into this case under the law of the case theory, that over a long period of years works of the *786 defendant generally caused damage to lands and crops of the plaintiffs.
It might well be said that these two phases of evidence could be regarded as corroborative in character, provided of course that there was evidence disclosing the source of the thing which caused the particular damage claimed. But here there was not the primary evidence which is the basis for corroborative proof.
I earnestly insist therefore that the present majority opinion should have been rejected and the one rejected should have been allowed to stand.