85 Neb. 77 | Neb. | 1909
In 1871 the then owners of a tract of land crossed by the Wahoo creek by ad quod damnum proceedings in the district court for Saunders county acquired the right to flow the lands of upper proprietors so far as might be necessary in constructing and maintaining a dam 20 feet in height across said stream and upon the land of the petitioners. A dam and gristmill were constructed, and the mill thereafter operated. In 1887 a flouring-mill with modern appliances was built upon said mill site, and subsequently operated; the original mill being used for grinding corn and oats. In 1893 the last mill constructed was dismantled, and, with the machinery, removed. Subsequently defendant became the owner of the mill site and the mill first constructed. At that time the dam had been washed away, but was rebuilt by defendant about 18 months after his purchase. Thereafter defendant occasionally operated the mill on a very small scale, and cut ice from the millpond for his ice business in Wahoo. In May, 1903, the dam was again washed aAvay, and in May or June of 1905 defendant was preparing to reconstruct it, when this action for an injunction Avas instituted by the upper riparian OAvners. The court found generally for plaintiffs, and perpetually enjoined defendant from building, constructing and maintaining any dam across the Wahoo creek upon his said land, and he appeals.
1. While the condemnation, proceedings Avere regular, they did not vest defendant or his grantors Avith the right of floAvage in perpetuity, but merely the privilege of exercising that poAver until the easement was extinguished in some laAvful manner. Pratt v. Brown, 3 Wis. 532; Curtiss v. Smith, 35 Conn. 156; French v. Braintree Mfg. Co., 40 Mass. 216; Nosser v. Seeley, 10 Neb. 460. A right of floAVage thus acquired may be lost by abandonment or non
Defendant’s grantors by the exercise of the power ■ of eminent domain were granted a servitude upon the lands now owned by plaintiffs, to the end that a public gristmill operated by water power might be constructed and maintained. In the early history of this state, in common with like periods in the experience of sister common
The evidence proves to our satisfaction that defendant’s real purpose in maintaining the millpond has been to furnish an ice field from whence he could procure ice for his trade. Defendant since he became the owner of the mill, and preceding the destruction of the dam in 1903, has not operated the mill with any regularity, but, on the contrary, during long and infrequent intervals of time has operated not to exceed three hours at a time. Months would pass during which the mill was not operated at all. Witnesses who frequently traveled the highway adjacent to the property testified that they never saw it in operation. One witness who passed the mill six days in the week for years only saw a team at the mill on two occasions. The infrequent grists ground consisted generally of but a few bushels of rye, buckwheat, corn or oats. The public did not patronize the mill. It is poorly equipped for practical work, and for years has ceased to be of any benefit 1o the public or the community in which it is situated. Taking all of these facts into consideration, and the further fact that defendant remained passive for over two
2. The injunction is absolute, forbidding the reconstruction of a dam upon défendant’s land. Defendant owns a mill, antiquated, but still constructed for the milling trade. He also owns the land on both sides of the creek where he proposes, and alleges that he desires, to construct a dam. He has a right to proceed under the statute to establish his right to construct and maintain the dam and operate the mill.
The judgment of the district court, therefore, is modified so as to enjoin defendant from constructing or maintaining a dam upon the land described in the petition until and unless he shall have qgain acquired the right so to do by ad quod damnum proceedings in the district court for Saunders county, and, as thus modified, the judgment is affirmed.
Judgment accordingly.