92 Neb. 550 | Neb. | 1912
Lead Opinion
In 1873 Oscar M. Garter prosecuted proceedings in ad quod damnum in the district court for Saunders county, and in the following year obtained a judgment in that action, establishing his right to erect and maintain a dam across Wahoo creek on certain lands then owned by him near the town of Ashland, in said county. This dam by the judgment was not to be maintained more than 15 feet high above low-water mark, and damages were allowed to the owners of certain riparian lands which it was found would be injured by raising the water to that height. This defendant succeeds to these rights by mesne conveyances. The petition in ad quod- dam-num showed that the “petitioner is erecting a grist mill on his said land, and is constructing a dam across said Wahoo creek, * * * and is excavating a mill-race for his said mill,” and prayed “that he might have leave to proceed to the construction of his said improvements.” The order of the court recited that the petitioner'had asked “for leave to build and continue his milldam at the point described in his said petition.” The jury by their verdict found that “by reason of construction and continuance of the milldam built 15 feet high above low-water mark (the defendants, naming
In December, 1907, these plaintiffs began this action in the district court for Saunders county, alleging that they were owners of riparian lands damaged by tlie maintenance of the defendant’s dam, and asking that the dam be “adjudged to be unlawful and a nuisance, and that it be abated and the defendant perpetually enjoined from maintaining it or any other dam on Wahoo creek, whereby said lands or any of them may be flooded,” and for general equitable relief.
The plaintiffs also alleged that the dam was being maintained at a greater height than alloAved by the ad quod damnum proceedings, and asked for an injunction restraining the defendant from so maintaining the dam. A temporary restraining order was issued restraining the de
The plaintiffs insist that the dam is not now being devoted to a public use, and that “an easement for a particular purpose ceases when the purpose no longer exists,” and that, “in any event, the dam can only be maintained 15 feet above actual low-water mark;” that the dam has been substantially raised above the prescribed limits by use of “flash-boards,” which in effect added something like two feet of height to the dam. It is also insisted that some of the plaintiffs in this case are the owners of riparian lands which were not included in the acl quod damnum proceedings, and which are injured by this dam, and that such plaintiffs are entitled to relief, although others are not found to be so. The case is an important one, and some of the difficult questions presented are without precedent in this state. A reargument Avas allowed, and we have had the assistance of a thorough and able presentation of the case from both points of view.
1. The principal discussion has been in regard to the nature of the rights conferred in ad quod damnum proceedings, and in that connection, also, in regard to the limitations placed upon the legislature by the constitution. The constitution has placed certain limitations upon each of the three departments of government. Whether an attempted act of legislation is beyond its power is a question of law. The constitution makes it the duty of this court to determine questions of law that arise in litigation before it, and, when an act of the legislature is drawn in question as beyond its poAver, we cannot avoid the determination of the question so presented.
The courts have, no doubt, in some instances interfered
Tn Colorado their constitution provides that private property may be taken for private use without the consent of the owner “for private ways of necessity, and * * * for reservoirs, drains, flumes or ditches, on or across the lands of others, for agriculture, mining, milling, domestic, or sanitary purposes,” and the supreme court of that state held that, under this provision of the constitution, land could be condemned to carry water to operate an electric light plant. The court held: “The term ‘milling,’ as used in the constitution, is synonymous with the word ‘manufacturing,’ and an electric light plant is a manufacturing establishment.” Lamborn v. Bell, 32 Pac. 989 (18 Colo. 316). Our constitutional provision, that the subject of legislation must be expressed in the title of the act, is supposed to be to prevent inserting foreign matters in pending bills, and so securing ill-considered legislation. “An act relating to mills and milldams” is a comprehensive title. It permits of legislation regarding any kind of mill that uses “machinery to be propelled by. water.” We think this objection cannot- be sustained.
The second constitutional objection which the plaintiffs urge against the construction of the statute contended for by the defendant is that the legislature has no power to condemn private property for private use. The ad quod damnum act involves the exercise of the right of eminent domain, and it is contended that to generate electricity to be furnished to a city and its inhabitants is not a public use, and beyond the power of the legislature to authorize the damaging of private property for 'such purpose, and-therefore to make such use of the right obtained by ad quod damnum is to abandon the right which was originally given and was within the power of the legislature. The Massachusetts coxxrt, construing the statutes of that state, appear to have held that the provisions of the milldam act
Is the use that is being made of this power a public use? There is an interesting discussion of this question in 3 Farnham, Waters and Water Rights. The author severely criticises the decisions of several courts, and especially the supreme court of Massachusetts. He does not agree with that court in upholding the constitutionality of acts which allow the flowage of lands for the purpose of constructing private mills, and says: “The only things that will justify such a taking is the intention to use the power for the direct benefit of the public, as by the erection and operation of a public mill, where every one will have a right to have his work done upon payment of a toll, and which will always be under control of the legislature.” Section 697. In discussing the question Iioav far a water power can be taken under the power of eminent domain for the purpose of generating electricty, this author says: “If the electricity generated is to be subject to the common use of all who apply for it upon making reasonable compensation, it is more nearly a public use than is any other connected with the generation of power.” Section 6976. The supreme court of Minnesota has decided that “the generation of electricity by water power for distribution and sale to the general public on equal terms, subject to governmental control, is a public enterprise, and property so used is devoted to public use.” Minnesota Canal & Power Co. v. Koochiching Co., 97 Minn. 429, 5 L. R. A. n. s. 638. It was said by the supreme court of Vermont, in In re Barre Water Co., 62 Vt. 27, 20 Atl. 109: “But to say what a public use is with sufficient comprehensiveness and accuracy to meet the exigencies of all cases is, to say the least, difficult. Nor is it easier to define the limit of legislative power in respect to the right of eminent domain. This power
The evidence shows that this defendant is using this power to furnish the city of Ashland and its inhabitants with electricity for lighting and power purposes. It was organized for that purpose. The law requires it to furnish
2. It is contended that the statute cannot be construed to authorize this use of the right obtained by ad quod damnum proceedings. The language of the first section of the act is a sufficient answer to this objection. “If any person, desiring to erect a dam across any water-course for the purpose of building a water grist, saw, carding, or fulling mill, or of erecting any machinery to be propelled by water, * * * he may file a petition,” etc. Comp. St. 1911, ch. 57, sec. 1. The last legislature enacted a. statute providing that cities and villages can acquire milldam sites for municipal purposes. Laws 1911, ch. 83. This is a legislative construction that such use of the ower is a public use, and clearly contemplates that rights of flowage acquired by ad quod damnum proceedings may be used for such purposes. Unless this is true, the act in its most common application would be unconstitutional.
3. It is said that “an easement for a particular purpose ceases when the purpose no longer exists,” and Gross v. Jones, 85 Neb. 77, is cited as supporting this proposition. In that case the principal question determined was whether the dam and the power generated thereby had been abandoned. It is assumed in the opinion that to maintain the dam and mill-pond for the purpose of furnishing ice would not be such a use of the right acquired as to prevent the loss of the right by abandonment for nonuser. It may be conceded that, having obtained the right of flowage of these lands for a specified public purpose, it cannot be devoted to an entirely different and private purpose, and an attempt to do so would be an abandonment of the right obtained. The question is: What must be regarded as a different purpose within the meaning of this rule? In Chicago & E. I. R. Co. v. Clapp, 66 N. E. 223 (201 Ill. 418), the supreme court of that state held: “Where a railroad company has ceased to operate a branch to a coal mine after the mine was exhausted, had taken up the tracks
5. The plaintiffs contend that the evidence establishes that the defendant’s darn is more than 15 feet above low-water mark, and that the use of flash-boards raises the water to a greater height than is permitted by the rights obtained by the defendant’s grantors. They do not attempt any analysis of the evidence, but they allege that the defendant’s recital of the evidence upon these points is incomplete and unfair. A large number of witnesses were examined, and the bill of exceptions is quite bulky, presenting some conflict in the testimony. It does not seem advisable to enter upon a discussion of this evidence. It seems to support the conclusions reached by the trial court. The contention of the defendant that the plaintiffs and all parties interested have consented to the use of these flash-boards, and so are now estopped to complain, does not seem to be quite consistent with the position that the defendant lias taken in urging that the use of these flash-boards has not raised the water above the prescribed limit.
The writer would have affirmed the judgment of the trial court as rendered, but upon consultation we concluded that the trial court, having jurisdiction of the matter, should have retained the action for all purposes, and should have allowed the plaintiffs whose lands were not included in the ad quod damnum proceedings to recover their damages, and the plaintiffs whose lands were included in the ad quod damnum proceedings to recover such damages, if any, to the lands as were caused by the new and additional use of the dani and water power.
The judgment of the district could dissolving the injunction is affirmed, and the judgment is in other respects modified, and the cause remanded to the district court, with instructions to allow the parties to amend their pleadings, if so advised, and take further evidence, if necessary, and determine the plaintiffs’ damages as indicated in this opinion.
Judgment accordingly.
I concur in the opinion, subject to the principles of law announced in Znamanacek v. Jelinek, 69 Neb. 110, and Arterburn v. Beard, 86 Neb. 733.
Concurrence Opinion
concurring.
I agree in the conclusion reached by Judge Sedgwick that the dam should not be destroyed, but I only partly agree to the things said in the main opinion, and I wish to give my understanding of what I conceive to be the principle which should be applied.
Flour may be manufactured by an aggregation of capital applied to the development of water power and ma
The thing that justifies the taking of the land and submerging it by water is tbe creation of a water power to be used in the interest of tbe public in tbe conduct of an enterprise to manufacture flour. The mill is for the benefit of tbe public, and it matters not if the old method of taking tolls out of the grists lias been superseded by tbe new method of exchanging so many bushels of wheat for so many sacks of flour. When the wheat is exchanged for the flour, that is a matter in which tbe public is interested, although the actual grinding of the flour is a private enterprise conducted by the miller. It is a public utility because it is a necessity to the public, and the creation and maintenance of the power which creates the flour in order that the public may purchase it is clearly a public utility. The actual manufacturing of the flour is a private enterprise, although the flour when manufactured is for the public use. Is there any serious distinction between the manufacture of flour for the use of the public .and the
Section 13 of the Bill of Rights of the constitution of 18(50: “The property of no person shall be taken for public use Avithout just compensation therefor.” The foregoing declaration of rights Avas in force when the property in question was taken. The constitution itself does not specify a particular use, as the manufacture of flour alone or corn-meal or feed or lumber, but it is just the taking of the property for “public use.” The provision of the constitution of 1866 was followed by section 21 of the Bill of Rights in the constitution of 1875, and that section contemplates the taking or damaging of property for “public use,” and it does not provide that after the prop
It will be seen by this that the legislature did not contemplate the exclusive application of the power to a mill grinding for toll. Putting it the other way, the legislature contemplated the ad quod damnum proceedings and the payment, of damages and the use of the power obtained for the running of a private mill. It is undoubtedly a public utility to build a dam and a mill for the manufacture of flour. To build such a mill and to manufacture flour is a private enterprise conducted with a public purpose. It may be a private enterprise to generate electricity for the use of the public with which the public may light its streets and buildings. Is the use of the power to manufacture flour more a private enterprise than the use of the power to generate electricity? By virtue of the ad quod damnum proceedings, the plaintiffs in this case sold to the original proprietors the right to flow their lands. Their lands were originally overflowed for the purpose of furnishing power to run the mill. The thing that the plaintiffs parted with was the right of the petitioner in the ad quod damnum proceedings to overflow their lands along the creek in consideration of the money which he paid to them for that privilege. They have been paid once. Can it be of any serious moment to them whether their lands are overflowed for the purpose of furnishing power to a mill that grinds flour which the public purchase and
It is contended, with ingenuity and force, that only the things can be done which were in contemplation of the original jury that sat in the ad quod damnum proceedings. The theory is that there can be no growth or change. The theory is that it must be a “grist-mill,” and that it cannot be anything else. It would hardly seem that this contention is fair in view of the provisions of the constitution and in view of the provisions of the statute. The words used, “erecting any machinery to be propelled by water,” certainly suggest that it was, in contemplation of the legislature that something else might be done in addition to running a flour-mill. If this be not so, then is there any purpose in using the words “erecting any machinery to be propelled by water”? If the right was granted for the purpose of using power, what difference can it make to the grantors whether the power is applied to one purpose or-another? They have consented that the water may be backed up the stream, and that their lands may be submerged so that the power may be created. What difference can it make to them whether the power is applied to one legitimate purpose or another? They have recognized the principle that the power may be created and applied. When the power is created - and has been applied, why should they seek to destroy it?
In view of the able opinion delivered by Judge Sedgwick, I hesitate to write anything in addition, and I only do so because of the fact that the main opinion does not seem to me to fully give the reasons which I believe should be given to justify the conclusion reached.
Dissenting Opinion
dissenting.
As T see the merits of this case, the affirmance of that part of the lower court’s decree denying an injunction to
The relief sought by plaintiffs is a perpetual injunction to prevent the maintaining of a dam across Wahoo creek near Ashland. They are upper riparian proprietors whose lands are damaged by overflowing water. Defendant is a corporation. It maintains the dam and uses the waterpower of the stream to generate electricity for lighting purposes in the city of Ashland, Nebraska, and in Pacific Junction, Iowa. The trial court dismissed the case after a trial on the merits, and plaintiffs appealed to this court for the equitable, relief denied below.
One of the grounds urged by plaintiffs for an injunction may be stated in this form: Defendant never had any right to maintain the dam except for the purpose of operating a grist-mill; that right has been lost by abandonment or nonuser, and defendant is unlawfully overflowing the lands of plaintiffs for the purpose of running an electric light plant. On the other hand, defendant, through an easement of flowage acquired by condemnation, asserts the right to use the water-power to propel the machinery installed in its power-house. In determining the merits of these contentions, the privilege under which defendant assumes to act must be traced to its source. By a judgment rendered May 26, 1874, in ad quod damnum proceedings in the district court for Saunders county, Oscar M. Carter was authorized to construct and maintain a dam on the present site, and he promptly exercised the right thus granted. It is stipulated by the parties that defendant, through mesne conveyances, succeeded to the rights of Carter. On the face of his petition in the condemnation proceeding, the enterprise originally undertaken, in addition to the construction and maintenance of the dam, was
It is settled law in this state that the condemnation did not vest in Carter or in his grantee the right of flow-age in perpetuity. What he procured was the mere privilege of exercising his easement during its existence. Gross v. Jones, 85 Neb. 77. The original easement of flowage for grist-mill purposes, therefore, cannot be successfully interposed as a defense to the action of plaintiffs to enjoin defendant from overflowing their lands for the sole purpose of utilizing the water-power for an electric light plant. After abandonment of the particular use for which a mere easement in land is established, it cannot be lawfuly devoted to a different purpose without payment of additional compensation or recondemnation. Heard v. City of Brooklyn, 60 N. Y. 242; Campbell v. City of Kansas, 102 Mo. 326; Pittsburgh & L. E. R. Co. v. Bruce, 102 Pa. St. 23. Having lost the original easement by abandonment and nonuser, having made no effort to condemn the lands of plaintiffs for the new and different purpose of obtaining water-power to generate electricity, and having failed to pay for, or otherwise acquire, an additional right of servitude, defendant is a trespasser, and should be enjoined as such.
The deduction I make from the facts and the law cannot be avoided by merely pointing to the milldam act of 1873 and asserting that its title is broad enough to include legislation relating to the procuring of easements of flowage for the purpose of generating electricity by waterpower, that the purpose named is a public one, and that the act authorizes such easements. If the title is as broad as the description of the majority, and if the act contains
I do not find in the record any substantial proof of the acquiescence suggested by the majority as a reason for denying equitable relief. The power-house and other improvements were constructed on land to which defendant owned the fee. The power-plant is equipped to utilize both water-power and steam-power. By the latter the lighting enterprise can be carried on without the right of flowage. Improvements for utilizing steam-power did not concern