299 N.W. 182 | Neb. | 1941
William H. Platner, appellant, for some years owned and occupied a fine home west of the city limits of Omaha. The house had no sewer connections. In 1925 Mr. Platner asked and received permission from Douglas county to construct a sewer under a county road, which would be Farnam street extended, for a distance of three blocks where connection could be made with a city sewer. He constructed the sewer at a cost of about $2,700 connecting same with his house and with the city sewer, using ten-inch tile. In front of each lot in the three blocks he made provision to attach a lateral, should a lot owner desire to connect with his sewer. In 1928 he conveyed the premises to Fred J. Ruedy and wife, Bertha, appellee, who is the present owner, for $32,000 and another house. The deed conveyed the real estate, together with “all * * * appurtenances to the same belonging.” At that time Mr. Platner owned no other property along the line of the sewer or in the vicinity, although before the deal was finally consummated he bought another lot across the
Platner claims that the sewer belongs to him and sues MeMartin and Ruedy for $325 for the alleged unauthorized use of his sewer by MeMartin, claiming that Ruedy is liable with MeMartin because Ruedy permitted MeMartin to connect with his lateral and thereby emptied McMartin’s sewage into the main sewer in the street. Ruedy counterclaims asking judgment against Platner for connecting with the street sewer which Ruedy contends was transferred to him by the deed. MeMartin answers alleging, first, that the sewer is in a public road and that therefore plaintiff can claim no ownership of the sewer, and, second, that plaintiff conveyed all his rights in the sewer to Ruedy by the deed. A jury was waived and trial had to the court. The district court found for Ruedy and MeMartin and awarded Ruedy a judgment against Platner in the sum of $296. Mr. Platner appeals.
Plaintiff’s counsel asked plaintiff to detail any conversations had with Ruedy about the sewer before the deed was given. The defendant Ruedy objected to this, and the court stated that he thought it was inadmissible, but upon the insistence of plaintiff’s counsel that this- was a proper
Plaintiff, over the objection of defendant, having given oral testimony as to the meaning of the deed, cannot, and does not, contend in this court that the same is inadmissible. Defendant does not object here, the trial court having found in his favor. Consequently, we do not consider that this proposition of law is now before us. The trial court found
But in addition to finding generally for the defendant Ruedy, the trial court made a specific, finding that the plaintiff did intend to, and did, by the terms of the deed convey the legal title to the sewer. It thus appears that the court considered not only the testimony, but the legal effect of the deed itself in making its decision. For that reason, we go to the proposition of law as to whether the deed standing alone, regardless of parol evidence, transferred the title to the sewer as an appurtenance. We find no Nebraska authority on this question, and, in fact, no authority directly in point has been cited by counsel. In the first brief filed in this court by appellant, the position was taken that the county had no title to this sewer. In appellant’s reply brief he seems to agree with MeMartin that the county does own the sewer. Douglas county is not a party to this suit. It makes no claim to the sewer in so far asi this action is concerned, so we do not comment on this feature of the case. Trial was had July 15, 1940. August 7, 1940, judgment was entered. August 8, 1940, plaintiff filed motion for new trial. August 27, 1940, plaintiff asked leave to file an amended petition alleging that plaintiff, as against the defendant, had acquired an easement in the sewer and also that defendant’s counterclaim was barred by the statute of limitations. This motion was denied. Plaintiff specifies this ruling as error. We think that the trial court used proper discretion in overruling the motion. We think his principal contention is, however, that Ruedy is entitled only to the use of the sewer, and in support of that theory he cites the case of Mulrooney v. Obear, 171 Mo. 613, 71 S. W. 1019, which case we think more nearly sets out plaintiff’s
We believe that the meaning of the word “appurtenances” must be determined by the circumstances attending this transfer. It would seem that the sewer in question should be deemed an appurtenance. The city of Omaha has steadily grown westward, and it is difficult in retrospect to visualize the situation in 1928. The evidence shows that Mr. Platner’s residence at that time was a country home. It stood in an isolated position and was a living unit in itself. The sewer was built primarily for the use of this house. Mr. Platner owned no other real estate in the vicinity and no other real estate was served by this sewer. Except for the fact that it connected with the city sewer, the situation differed little from a house situated on a farm oút of which a sewer might lead under a public road. If Mr. Platner had not purchased a lot in the vicinity at a later date, the sewer surely would have been considered by the parties an appurtenance. We think that under the terms of the deed Platner could well, as between himself and Ruedy, refuse to repair or keep the sewer in condition. No reservation of the sewer was made
Affirmed.