63 Neb. 510 | Neb. | 1902
The essential question presented by this case seems to be the nature and extent of the right to flow real estate and to divert water Avhich can be acquired by mere acquiescence for a period short of ten years on the part of the riparian owners.
In March, 1887, John Gr. Schaupp visited Arcadia, on the Middle Loup river, with a view to establishing a flouring mill. He found where that river crosses section 26, township 17, range 16 west, an island half a mile long, and comparatively narrow, and on the northeast of it a channel, through which a strong current was then running. He
In the meantime, immediately after this' sheriff’s deed in August, 1894, the irrigation company,- defendant, was formed. It purchased from Schaupp his interest in the dam at the head of the island, purchased the banks on both sides at that point, and purchased the strip of land from that point down the old channel bed between the left bank and the island to Fries’s premises. It also bought the old race on Fries’s land down to the south line of his lot 2. From that point it purchased a 120-foot strip along the north side of the half section line on Fries’s lot 2 and on the southeast quarter of the northeast quarter of the section to its east line. This southeast quarter of the northeast quarter was then owned by John Gf. Schaupp, by a purchase made apparently in 1890 or 1891, from one Monerief. The latter, after the race-way was extended, and Fries had been awarded damages for the flooding of his land, had claimed damages for flowing this southeast quarter of the northeast quarter, apparently by the backing up of the water in the Hawthorne-creek channel, which was used as a mill-pond, and Schaupp had settled the matter by purchasing the entire forty acres, and then in August, 1894, as above stated, conveyed a strip along its south line to the irrigation company. After securing deeds to all this property, the irrigation company commenced at once repairing
The irrigation company admits its incorporation; that it operates a canal; that Wall owned the lands conveyed by the sheriff’s deed; that Schaupp built the mill; that the beneficiaries furnished materials; that the foreclosure and ' sale were had and deed made to plaintiff as trustee; that Schaupp leased the premises and subsequently surrendered them; disclaims all interest in the, premises described in the sheriff’s deed. With reference to the disputed, strip of land constituting the race-way, it sets out its appropriation and use of the water by proceedings under the statute, commenced August 13, 3 894; its conveyances from the various owners of the strip of land 120 feet wide from the dam to the east side of said section 20, and including all the portion claimed by plaintiff in the north half of the section; and ownership of the right bauk of the river abutting upon the dam; its possession from August 11, 1894, to the commencement of this action in August, 1897, and improvements upon the dam and race-way of a value of not less than $4,009, and irrigation works below, making a total value of $35,000; and says that this entire plant was constructed with full knowledge of plaintiff, and was operated during the three years without objection on his part; denies any right in Schaupp or the plaintiff to either •the disputed strip of land or the flow, of water; alleges failure of Schaupp’s attempt to create a water-power, and that all possessory acts of his in attempting to build a dam
As before suggested, the question raised is as to the existence of title in the plaintiff to the strip of land claimed for a head-race in the north half of the section, and also as to the extent and character of the water right possessed by plaintiff. As to the first, it is clear from the evidence that no such agreement as plaintiff alleges ever existed, and no title in the north half of the section was acquired by Schaupp prior to the mortgage, or attempted to be conveyed by any one representing him to plaintiff or to plaintiff’s beneficiaries. While the trial court found generally for the plaintiff, the specific findings are only that plaintiff had a right to the water and to flow the lands in the north half of the section in order to get it. The temporary injunction was made perpetual, and defendants were enjoined from maintaining or using any head-gate or canal at or near said premises to conduct or draw off water from the race, and from interfering with the race or sánd-sluice connected with it. This, of course, gives the water to plaintiff and to the beneficiaries in his trust, and not only that, but it forbids the defendant company from using its own lands and dam to put water into this race to which it holds the title, and forbids it interfering with a sluice on its own lands, built by itself.
•It seems clear that the decree as it stands can not be sustained. It gives a degree of control to the mill-race as it now exists which only belongs to one who holds in fee. As above stated, the evidence is very far from disclosing any such title in any portion of the north half of the section on the part of plaintiff. The fee to the race north of the centre line of the section was never in Schaupp, nor agreed to be. His only arrangement for any conveyances was with Wall. Wall had sold lot 2 before such agreement was made, and the agreement with him only contemplated
The state of facts in this case warrants no finding of an absolute and exclusive right in plaintiff to the dam and to the race-way, with its tow-head and sluice in the north half of the section. The utmost that could be claimed for him or his beneficiaries north of the half section line is a license to maintain the dam and race-way as it was ordinarily from November, 1887, to August 11, 1894, when the defendant company took its deeds and began its improvements. The plaintiff’s right to the water and privilege of getting it could be only to the extent of such previous enjoyment. Any use which the owners might choose to make of their property which left unimpaired plaintiff’s enjoyment of the water to that extent would manifestly be lawful, and should not be enjoined. It is thus clear that defendants, as general owners of the premises involved, had rights to use their property which are not recognized in this decree, and, to that extent at all events, the decree can not be upheld.
It seems, however, clear that there was during all the time from 1887 until the irrigation company’s purchase, with only temporary interruptions, some use of water privileges by the mill. It also appears that the irrigation company, while it controlled the water, made use of a part of the old race-way granted by Wall to Schaupp’s son and son-in-law, and conveyed by the sheriff’s deed to the plaintiff, and it seems, as above stated, that'a part of the irrigation company’s excávation is across a corner of .the four acres constituting the mill-site. It also appears that the 120-foot strip purchased by the irrigation company along the south line of the southeast quarter of the northeast quarter of section 26 crosses the I-Tawth'orne-creek channel just above the mill, or, in other words, goes through the mill-pond, Evi
It is necessary to examine as to the gate into defendants’ canal. As indicated, it is on the southeast quarter of the northeast quarter of section 26, immediately north of the four-acre mill lot. This forty acres of land was purchased by Schaupp, of Moncrief, as stated, as late, as 1890. There is nothing to indicate that Moncrief had anything to do with the starting of the mill, or knowledge of any intention to back water up Hawthorne creek. There is no indication anywhere of any right over this forty acres of land accruing to the mill property- before Schaupp’s purchase. Nothing is pointed out in the record which would estop Schaupp from asserting his full rights as owner against the mortgagees of the mill. Whatever rights he had in the 120-foot strip passed by his deed to the irrigation company. Plainly, then, the right to maintain the mill-pond, and to prevent the irrigation company from draining it over its own land into its own canal, has never been acquired by plaintiff, and there is no equity in plaintiff’s demand for an injunction against the drawing-off of this water into the canal. It follows that the injunction restraining the defendants from the use of their dam, tow-head, sand-sluice and race-way, and from the use of their head-gate into the canal, should be dissolved. It would seem that plaintiff’s rights in the premises depend upon something neither alleged nor shown by the evidence with any definiteness,viz., the rights held by John G. Schaupp in this mill-race and water-power on November 21, 1887, at the time the deed was made to Charles Moore and August Schaupp for his benefit, and the mortgage executed by them. It has been sufficiently indicated that in our opinion no irrevocable rights, either over the part of the race in the north half of the section, nor to the dam and sluice-way, nor' to the flowage of the bed of Hawthorne creek, north of the half-section line, have been acquired since November 21, 1.887. Whatever was appurtenant to the mill at that time passed by the foreclosure and
It is therefore recommended that the decree of the district court be reversed and set aside, the injunction dissolved, and the cause remanded for further proceedings.
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is reversed and set aside, the injunction dissolved and the cause remanded for further proceedings.
Reversed and remanded.