126 Neb. 711 | Neb. | 1934
This is a suit in equity to enjoin an alleged continuing-trespass upon real estate, and to recover damages resulting therefrom. From the decree of the trial court award
This action was originally commenced on January 22, 1930, as an action at law in which the plaintiff sought to recover damages for the value of lands actually appropriated by the defendant for an irrigation canal; special damages to the remainder of the tract by way of diminution in value, and for injury to and destruction of crops and grass upon the land, alleged to have resulted from the damming up of surface waters by the canal embankment. On February 17, 1932, plaintiff filed an amended and supplemental petition, in which he appears to have abandoned his original theory. In the latter petition he inyokes the powers of a court of equity for an injunction restraining the defendant from carrying on its system of irrigation through his premises, on the ground that the same amounts to a continuing trespass, and prays for general damages resulting from such trespass. In the defendant’s answer to plaintiff’s supplemental petition it seeks to justify its action by the claim that it is a duly incorporated and existing common carrier of water for Irrigation purposes; that on March 25, 1896, the Farmers & Merchants Irrigation Company acquired, by warranty deed, a right of way for irrigation purposes across the land in question from one Alexander Regouby, father of plaintiff, and that through mesne conveyances this defendant became the owner of said right of way from the original grantee; that, in the latter part of the year 1926, the defendant constructed the irrigation canal in question; that, previous to the construction thereof, the plaintiff and defendant entered into an oral agreement whereby the right to construct the canal was granted to the defendant upon the defendant’s promise to make certain improvements upon the plaintiff’s land; that, in furtherance of this agreement, the canal was constructed and the improvements made, and that such agreement, in law, amounts to an irrevocable license to maintain the canal
It appears from the record that the plaintiff is the' owner of the land in question, being 80 acres, rectangular in shape, which is traversed lengthwise by the defendant’s irrigation canal in an easterly and westerly direction, somewhere near the middle, making the canal on plaintiff’s land approximately 100 rods in length; that no attempt was made by the defendant to exercise any statutory right of eminent domain over the premises; that in the fall of 1926 the defendant began the construction of its canal, coming from the west and moving eastward. When the work approached plaintiff’s premises, the defendant, through its officers, notified the plaintiff that they proposed to excavate across his land. The plaintiff, upon receipt of this notice, protested against the proposal^ stating that he did not want an irrigation ditch dug through his premises. He was then notified by the officers of the defendant that they were going on through his premises with the canal and would proceed to carry out their design unless stopped by the courts. The plaintiff did not invoke the powers of the court to prevent the work, and the canal was completed through plaintiff's premises in the latter part of 1926. In 1927 irrigation waters were turned therein.
It appears that the land actually appropriated for the canal and its embankments consumed a strip about 100 rods long and 77 feet wide. It appears further that the portion of plaintiff’s land lying to the north of the canal
The evidence shows without serious dispute that the Farmers & Merchants Irrigation Company in 1896 acquired a right of way by deed across these premises whereby there was conveyed a strip of land 75 feet wide. This conveyance contained the following provision: “Provided that in case said company * * * shall permanently abandon any survey or ditch made or to be made through said land, the same shall revert to and become revested in the said grantors herein, their heirs and assigns.”
The defendant claims to have been the grantee of the right of way described in the original deed through mesne conveyances. The evidence also shows, practically without dispute, that in 1901 the Farmers & Merchants Irrigation company wholly abandoned its irrigation project through the land in question and never thereafter asserted it; that neither the original grantee nor any subsequent grantee through it attempted to - claim a right of way through plaintiff’s premises until the year 1926. From 1901 to
While it appears that several conversations were had between plaintiff and representatives of the defendant concerning the construction of the proposed canal, and the manner in which the same was to be constructed, these conversations cannot be construed as an agreement, either express or implied, for a right of way across the premises. It does appear, however, that in these conversations, which occurred just prior to the beginning of the work, the plaintiff was informed by the defendant’s officers that the canal was going to be excavated irrespective of plaintiff’s objections, and if he believed his objections were well founded he would have to resort to the courts for relief. The plaintiff at that time made no attempt to stop the prosecution of the work, the canal was excavated and the irrigation project completed without paying the plaintiff anything by way of damages either for the land actually appropriated or otherwise. It further appears that after the work was completed the plaintiff, at various times before the commencement of Ms action,
Numerous grounds are urged by the appellant for reversal. The first that commends itself to our consideration is: Bid the trial court err in refusing to grant an injunction preventing the defendant from carrying on its system of irrigation through the land in question?
According to our interpretation of the decree, the court based its findings as to this point upon the proposition that, by agreement of the parties, an irrevocable license was granted by the plaintiff to the defendant permitting it to do the things the plaintiff now complains of. We do not believe that such a conclusion is justly warranted Jay the evidence. Licenses sound essentially in’ contract and arise from an agreement of some character, either express or implied. The plaintiff’s attitude at all times was that of objection rather than conciliation. No express agreement is shown, neither can one be implied from the conduct of the parties as disclosed by the record. It appears that the attitude of plaintiff, after he was informed that the defendant proposed to execute the work outlined, irrespective of his objections thereto, was that of pacifism for nearly three years. He lived on the premises and knew the canal was being excavated. He was informed that no effort would be made to ascertain his damage or pay the same unless he invoked the powers of the court in his behalf. Notwithstanding this, he allowed the defendant to expend considerable sums of money in the completion of its general system of irrigation. After the work was finished he applied to the defendant on several occasions to pay damages. He treated the whole situation as one entitling him to damages, rather than equitable relief by way of injunction. Under the statute the defendant had the power of eminent domain to condemn the plaintiff’s premises and thus construct its irrigation project. The rule, not only in this state, but in many
The next question for our consideration is whether the trial court applied the proper rules for determining damages where the property of a private individual is taken or damaged for a public use. Section 21, art. I of the. Constitution, provides: “The property of no person shah be taken or damaged for public use without just compensation therefor.” This section of our Constitution has been construed by the court on numerous occasions, and the rule seems to be well settled that the appropriating party must pay for the value of the land actually taken or appropriated, also any depreciation in the value of the remainder of the tract caused by the construction of the work, excluding general benefits. Chicago, R. I. & P. R. Co. v. Buel, 56 Neb. 205. If it appears that there is a general diminution in value of the remainder of the tract caused by the construction of the public work, that is a proper element of damage, and that element of damage can only be diminished by showing that there were benefits accruing specially to the particular' tract of land in question. Where such is the case, special benefits may be
The defendant appropriated a strip of land approximately 100 rods in length and 75 feet in width, containing about 3 acres. Along the west line of plaintiff’s premises, where the canal entered, the banks of the canal broke, allowing water to escape therefrom, and in repairing that aperture, the defendant appropriated more of plaintiff’s land for the purpose of borrowing earth to reconstruct its dikes. The trial court did not make any allowance to plaintiff for the land actually used in making this repair, nor for any damage to the land on the lower side of the canal occasioned by the water breaking through and washing holes therein. It appears that at one place there was a hole scoured out some 200 feet across and nearly 14 feet in depth, caused by the water breaking through the canal dike. The court should have allowed the plaintiff for the value of the land actually appropriated included within the boundary lines of the survey, and also that appropriated for the purpose of borrowing earth to reconstruct the dike. These two items are land actually appropriated. Whatever land was eroded on the lower side of the embankment by the breaking over of the water was not land appropriated for public.use.
The trial court denied plaintiff any damage occasioned to his crop by the overflow of his land, covering it with silt and débris, and also denied him damages for the erosion caused by the breaking over of the canal embankment. The trial court should have allowed plaintiff damages such as were fairly and justly warranted by the evidence, as follows: The value of the land actually taken by the canal, and borrowed earth used in the reparation thereof; special damages to the remainder of the tract occasioned by the project that could have been properly
That part of the decree denying the injunction is affirmed, but in all other respects the same is reversed and the cause remanded, with instructions to compute the damages in accordance herewith.
Affirmed in part, and reversed in part.