129 Neb. 54 | Neb. | 1935
This is a suit in equity begun March 13, 1933, the purpose of which is to enjoin the defendant from backing up water and overflowing plaintiff’s land. The plaintiff’s petition alleges that either in 1929 or 1930 the defendant constructed a dam across Pumpkin creek on its land adjoining plaintiff’s land, backed up and impounded the waters of said creek, flooding plaintiff’s land; that, as a result of backing up the water, hay and grass growing on the land covered by the water have been destroyed, and plaintiff was prevented from using her land during the years 1930, 1931, and 1932; that the defendant, by impounding the waters, has trespassed upon plaintiff’s land, forcibly and in violation of her rights, over her protest, and threatens to continue to so trespass unless restrained.
The defendant’s answer admits the construction of a dam on its own land which backs up water and floods plaintiff’s land. It alleges affirmatively that the dam was constructed in 1911 and has been in continuous operation since, except when temporarily washed out. It charges plaintiff with knowledge of existence of the dam and overflow on land at the time of her purchase. It alleges a suit between predecessors in title of both plaintiff and defend
The trial court found that, since the construction of the dam in 1911, the defendant had obtained a prescriptive right by adverse use to flood a part of the land of plaintiff; that the defendant does not have a right to increase the area of land flooded; that in 1929 defendant built a new headgate and outlet ditch, the bottom of which was 2.4 feet higher in elevation than that of the old gate, and in its use backed up the water to a greater extent than its right by prescription permitted. The defendant was enjoined from backing up water to any greater extent than will permit and secure a reasonable flow of water through the old headgate. The only question actually presented by this appeal is the prescriptive right of the defendant to flood the plaintiff’s land.
The defendant, and by this term we include also its predecessor in title, constructed in 1911 a dam on its own land about thirty rods downstream from plaintiff’s line. The defendant claims its adverse possession of plaintiff’s land for backing up and storing water began at that time. It appears that there was an argument between defendant and plaintiff, which term also includes her predecessor in title, about backing up and flooding plaintiff’s land, with the filing of a suit. The flooding of the land between 1911 and 1916 is evidenced only by the allegations in a petition filed in the district court for Banner county by plaintiff’s grantor in 1914 and the answer filed.in 1916. This petition alleges the flooding of the land in suit by backing up the water one quarter of a mile which covers four or five acres of this land and rendered certain other land useless because inaccessible. The defendant’s answer alleges that by agreement, in consideration of $75, he had a right to operate said dam. There is some testimony that the damages were settled for that amount. However vague, un
To establish an easement by prescription, the evidence must establish the extent of the adverse use for a period of ten years. It would seem that the defendant could have presented more satisfactory evidence as to the operation of this dam and reservoir and the extent of the flooding during the years. It was operating the irrigation works. In many ways, this is an unsatisfactory record. The briefs in this court do not join issues. We appreciate the difficulty of the trial court in reaching a conclusion. The trial court rightly found from the evidence that the defendant had acquired a prescriptive right to flood the
There was no way from the record to determine the extent to which the land flooded was increased. We have searched the testimony of the engineers in a vain effort to determine the matter. The only testimony that has the slightest bearing is that of Drake, who testified that when he made a survey he found the old headgate to be 2.4 feet lower than the one he planned. He never examined the work after construction to see that it conformed to his plans. The amount of water impounded and the area flooded depend upon the height the water is raised by the dam. The testimony of the engineers does not state the difference in the water level in the dam before and after the new construction. The decree of the trial court enjoins the defendant from backing up on plaintiff’s land water to any greater extent than will permit a reasonable flow of .water through the old headgate and the old ditch as it existed prior to 1929. Temporary washouts of a dam which backs water upstream on land of another do not necessarily affect an easement by adverse user. Moll v. Hagerbaumer, 98 Neb. 555.
Where a prescriptive easement exists, the evidence must establish an extension of the use made within the period to justify the issuance of an injunction. It would require further litigation to determine the level to which the water could be dammed which would depend upon the height formerly maintained. This question can be and should be settled in this case. It cannot be done now in this court for the reasons stated, and the. case should be remanded for a new trial.
Other questions argued are mentioned Rere that they may not seem to be overlooked. An individual does not
The plaintiff is not compelled to submit to a flooding of her lands here, unless the defendant has acquired a right by prescription. That it would be convenient for it and of little damage or inconvenience to plaintiff is not a reason to deny the injunction, if otherwise proper.
For the reasons stated in the opinion, the judgment is reversed and the cause remanded for new trial.
Reversed.