278 N.W. 568 | Neb. | 1938
The appellants, Camilla Bell Shelby and A. M. Shelby, brought a suit in the district court for Lincoln county, Nebraska, against the appellee, Platte Valley Public Power and Irrigation District, which will be hereinafter referred to as the District. The District at all times involved in this suit was and is now a corporation duly organized as a public power and irrigation district. It was organized under the laws of this state for the purpose of diverting water from the North Platte river, conveying this water by canals to reservoirs located in Lincoln county, Nebraska, then conveying it to and through a powerhouse located south of North Platte, Nebraska, for the operation of this powerhouse for generating electrical energy for sale, and for the sale of the water so diverted and stored; to water users elsewhere. The District was and is clothed
At all times involved in this suit prior to March 26, 1935, the Shelbys were the owners as tenants in common of a tract of land lying immediately north of the property upon which the powerhouse of the District is located. This tract of land which was owned by the Shelbys is three-quarters of a mile in width from east to west and one mile in length from north to south. The Shelbys still claim to be the owners of this land. Diagonally across this Shelby land a large canal was constructed by the District. This canal is referred to in the record as a tailrace and we will so refer to it herein. The District entered upon the Shelby land and commenced the construction of this tailrace on March 26, 1935. This tailrace was a necessary part of the improvement for which the District was organized, and it was necessary in making this improvement to cross this land, although it was not essential to the improvement that it should be located at the exact place where it was constructed.
The Shelbys in their amended petition allege that at the time the District went upon their land and constructed this tailrace it had neither purchased nor condemned the land over which the tailrace was constructed, and has not done so since that time; that in constructing this tailrace the District committed an unlawful trespass to their great damage; that the District possesses the power of eminent domain, under which this land can be acquired by the District for the construction and use of this tailrace; that by reason of an arrangement with the United States government, which has been financing this improvement, the property of the District, including its future income, has been encumbered to such an extent that there are no available assets of the District out of which a judgment could be satisfied should one be obtained by them against the District; that unless the District is restrained from entering upon their property the District will go thereon and cause irreparable damage thereto and refuse to pay
The District filed an amended answer, wherein it alleges that it went upon the Shelby land and has completed the tailrace by virtue of a contract with the Shelbys whereby it was authorized to enter upon this land and construct this tailrace for the agreed sum of-$7,400 to be paid by the District to the Shelbys; that the District has offered to pay the Shelbys said agreed sum of $7,400, which sum they have refused to accept; that the Shelbys had full knowledge of the fact that the District had entered upon their land and was constructing the tailrace thereon for some time prior to the institution of this suit, and with such knowledge they made and executed a deed of conveyance to the District of the right of way in question, sent the same by mail to their authorized agent at North Platte, Nebraska, with instructions to deliver the same to the District, and thereby ratified and affirmed the contract and the authority of the District to go. upon their land and construct a tailrace across the same; that the District has expended large sums of money in the construction of said tailrace, and that the Shelbys by such acts of ratification and acquiescence are estopped from changing their position to the great detriment and injury of the District, and are estopped from asserting that they had not consented to the District going upon their land and' constructing the tailrace across the same, and are estopped from denying that Coufal & Shaw, who in their name executed the contract in.question, had no authority
The Shelbys in a single pleading filed a reply to the District’s answer, and an answer to the District’s cross-petition. In this pleading they deny that they ever entered into a contract of sale for any part of their land, and allege and say that Coufal & Shaw were attorneys
The trial court denied the injunction prayed for, set aside and vacated a temporary injunction granted to the Shelbys on June 29,' 1935, but which had never been in effect because the requisite bond had never been furnished, dismissed plaintiff’s petition, and on the District’s cross-petition decreed specific performance of the contract of purchase entered into between the Shelbys through Coufal & Shaw and the District. From that decree this is an appeal. The Shelbys also appeal from the order of the trial court overruling their motion for a new trial.
The facts and circumstances out of which this suit arose, so far as important here, are as follows:
Early in January, 1935, the improvement being made by the District had about reached the tailrace below the
For many years prior to this time O. H. Thoelecke of North Platte, Nebraska, had represented the Shelbys in managing and renting their land; the Shelbys being residents of California. About this time the District employed Mr. Thoelecke as one of. its land appraisers. Upon being so employed Mr. Thoelecke and the Shelbys professedly selected an employee of Mr. Thoelecke, one L. E. Mehlmann, to act as the Shelbys’ agent at North Platte, Nebraska; however, the record shows that, while this was apparently the situation, the fact was that all of the correspondence in reference to this matter between the Shelbys and their represntatives in North Platte was placed in a drawer in Mr. Thoelecke’s office, to which he had access, that part of this correspondence was personally conducted by Mr. Thoelecke, that he was in touch with the Shelbys during all of the time that he was an appraiser for the District, that while he was an appraiser for the District he disclosed to the Shelbys confidential information which he acquired as such appraiser relative to the tentative appraisement the District had made of the Shelby land sought to be acquired for the tailraee, of which information the Shelbys availed themselves, and that after he was dismissed by the District he again took full charge of the' Shelby interests at North Platte.
About the time that the District determined to- take action to secure this right of way over the Shelby land, Mr. Thoelecke and Mr. Mehlmann took up that matter by correspondence with the Shelbys, and thereafter numerous letters, telegrams and telephone conversations passed between them and the Shelbys about the sale of land for this right of way to- the District and as -to other matters incident to the construction of the tail race. This, as well as .correspondence dealing with this matter had by the Shelbys ■ with ■ their representatives - located elsewhere in Nebraska, was carried on from- California on behalf of the
At this time the Shelbys decided to employ attorneys who were not located at North Platte, and about the middle of January, 1935, they employed the law firm of Coufal & Shaw of David City, Nebraska, to negotiate with the District relative to the District acquiring the right of way over their land. Shortly after this employment the firm sent Mr. Shaw of the firm to North Platte to investigate the situation. Mr. Shaw made a thorough investigation and by letter of date January 29, 1935, reported fully upon what he had found. In this letter he gave the exact description of the land proposed to be taken; this is the land which is the subject of this controversy. From this time on the Shelbys were aware of the exact land the District was seeking to secure for this tailrace. This firm of attorneys for a considerable period of time negotiated with the officers of the District about this matter. In these negotiations numerous questions were raised and considered, including what amount of money the Shelbys should be paid for land taken or damaged in the construction of this tailrace, the way the land should be left when the improvement had been completed, the question of fencing this land after the improvement had been made, siphoning the slough under the tailrace which ran across the helby land, and as to whether or not a bridge should be constructed by the District over the tailrace. The result of these negotiations and the position taken by the District were reported by these attorneys to the Shelbys from time to time as they occurred.
About February" 16, 1935, the Shelbys were advised by their attorneys that it was extremely important to the I istrict that it should have possession of this land at an early date, and that unless a settlement was made at once the District would proceed to condemn this land. The need for immediate possession arose because of the fact that
Prior to this time, on January 24, 1935, the District had entered into a contract with its contractor to construct this tailrace under plans and specifications which had theretofore been adopted by the District. This contract contained a time limit within which the contract was to be completed and subjected the contractor to penalties for failure to complete the contract within the time specified. This was a further reason why the District wanted early possession of the land.
On February 23, 1935, Coufal & Shaw wired the Shelbys that the District would settle for $7,200, conditions same. What those conditions were are set out in the letter of confirmation written by the attorneys to the Shelbys as follows: “The contracts are conditioned they will furnish and maintain the fence, and they will not interfere with the natural flow of Fremont slough but will take care of the same by syphon.”
On February 24, 1935, the Shelbys sent a telegram to their attorneys authorizing them to settle upon the basis indicated. This telegram is as follows: “Will accept seventy-two hundred if absolutely necessary but get your fee above this amount if possible.” This telegram was signed by Mr. Bell, but it was directed to be sent by Mrs. Shelby and the action taken was known to- Mr. Shelby. Upon receiving this authority to settle, these attorneys, on February 25, 1935, by telegram, advised the District that they could close this matter for $7,200 plus their attorney fees. A few days later Mr. Frank, who was the officer of the District having charge of securing the right of way for the District, called up Mr. Shaw by telephone, and after negotiating about the matter, Mr. Frank on behalf of the District and Mr. Shaw on behalf of the Shelbys arrived at the agreement embodied in the contract of sale. Whereupon the attorneys for the Shelbys prepared duplicate
On March 8, 1935, these attorneys forwarded to the Shelbys • duplicate executed copies of -this contract of sale and a warranty deed' conveying the land in controversy to the District, and requested the Shelbys to execute the “warranty deed, acknowledge the execution of the contracts and to return the deed and'one copy of this contract to them. On March 9, 1935,' these attorneys wrote the auditor of the District advising him that pursuant to his request they forwarded the deed and duplicate copies of the contract to the Shelbys 'for execution and' acknowledgment, and on the same day they • advised the attorney for the District to the same effect. Thé contract in question provides that, in' consideration of the payment of $7,400 by the District to the Shelbys and the- conditions contained in the contract to be kept and performed by the District, the Shelbys agreed to sell and convey to the District' by warranty deed the' land involved in this suit. These duplicate copies of the contract and the warranty deed transmitted to the Shelbys contained 'all the conditions insisted upon by the Shelbys up to the time they authorized their attorneys to sell the land involved for $7,400.
Some time after the contract and deed had been forwarded 'to the ’Shelbys they wrote to their attorneys complaining that the contract did not protect them from damages they might sustain because of seepage, although at no time prior thereto had they insisted upon such a provision as a condition of ’ settlement. In this letter they returned the two copies of the contract unsigned'but retained the warranty deed that had been forwarded to them.
In the circumstances we have outlined the District went upon the land'and constructed this tailrace without-condemning the land'over which it runs and which is-essential to its operation, and .began piling some dirt upon the south end of the land early in March, 1935, and on March 26, 1935, it entered the' north end of this land, placed • a drag-line thereon- and proceeded to construct this tailrace which was completed at the time' of the trial of this case. The record shows that the District did all things necessary to be done to carry out its contract of. purchase, that the price agreed upon to be paid was available on-and-after March 8, 1935, and that that sum was thereafter tendered to the Shelbys, which tender has been kept good -at all times since. - . -
The warranty deed conveying - the land in controversy to the District which had been sent to the Shelbys by their attorneys was executed by -the- Shelbys in due form on the 1st day of May, 1935, and on the-following day transmitted to Mr. Mehlmann with directions to check the descriptions therein contained and to deliver the deed to the District or to the attorneys at Bellwood. This was not done by Mr. Mehlmann, who gives as a reason for not doing so that he did not know the attorneys at Bellwood. He retained possession of-the deed -until this suit .was brought when he turned it over to the ■ present ■ attorney of the Shelbys. Unfortunately the letter whereby the Shelbys
The trial court found, and the record sustains its finding, that the employment of Coufal & Shaw, by the Shelbys, did not contemplate power in Coufal & Shaw, or either of them, to execute the contract of sale on behalf of the Shelbys and that Coufal & Shaw were without proper written authority from the Shelbys to execute the contract of sale herein involved, and that at the time of the execution thereof the same was not binding upon the Shelbys; that the Shelbys became aware of the execution of this contract of sale as entered into by Coufal & Shaw and were, on or about February 28, 1935, fully apprised of the contents thereof, and received from Coufal & Shaw the duplicate originals of said contract of sale, receiving same on or before March 10, 1935, and thereby became advised and informed as to all the provisions contained therein; that one L. E. Mehlmann gave to the Shelbys in the early part of April, 1935, actual knowledge of the fact that the District had entered into possession of said land and was constructing its ditch thereon.
In its decree- the trial court ordered specific performance of the contract of sale. Among other things the trial court found that, under all of the circumstances as disclosed from the evidence, the Shelbys are estopped to deny that they had ratified the acts of Coufal & Shaw in the execution and signing of said contract of sale, and that the acts and omissions of the Shelbys, under all of the circumstances, as shown in this case, works an estoppel in pais as against the Shelbys in such manner as to effect and to cause the execution of said instrument and agreement of sale to be ratified by operation of law, and to- cause such instrument to express a contract binding upon the Shelbys and upon the District and that the District is entitled to a decree for specific performance of said contract of sale. The trial court also found “that between the dates of
The District also urges that it is entitled to a decree for specific performance on the ground that this contract of sale was ratified and approved by the Shelbys. This claimed ratification is based upon the following grounds: (1) Through the chain of correspondence to which the name of the Shelbys, or one of them, was subscribed; (2) by execution and delivery of the deed; (3) that ratification may be construed to have been had from the silence and acquiescence of the Shelbys under the circumstances; (4) that such ratification be determined as a matter of law to have been effected by reason of the estoppel of the Shelbys to deny such. The trial court was clearly right in refusing to grant specific performance upon any ground of ratification. The first contention made is not borne out by the record;. no correspondence found in the record justifies this claim... Contentions 3 and 4 are without merit for the reason,that no substantial injuries were shown to have Jbeen suffered by the District because of the conduct of the Shelbys. We have already touched- upon .that phase
Under the record in this case the Shelbys are not entitled to any relief in a court of equity. The trial court was right in dismissing their petition. • 1 Pomeroy, Equity Jurisprudence (3d ed.) sec. 404, lays down the' law applicable here: “It is not alone fraud or illegality which will.prevent a suitor from entering a court of equity; any really unconscientious conduct, connected with the controversy to which he is a party, will repel him from the forum whose very foundation is good conscience.” This court in Blondel v. Bolander, 80 Neb. 531, 114 N. W. 574, approved the following rule of law laid down in 1 Pomeroy, Equity Jurisprudence (3d ed.) sec. 397: “Whenever a party, who, as actor, .seeks to set the judicial machinery in motion and obtain some remedy, has .violated conscience, or good faith, or other equitable principle, in his prior conduct, then the doors of the .court will be shut against him in limine; the court will .refuse to interfere-on his behalf, to acknowledge his right, -or to award him any remedy.” In Deweese v. Reinhard, 165 U. S. 386, the rule is announced as follows: “A -.court .of equity acts only when and as conscience commands, -and if-the-conduct-of the plaintiff be. offensive to the dictates.-of natural justice,
The Shelbys petition a court of equity to compel the District to acquire the land it needs for its tailrace, through the exercise of the power of eminent domain. The District resisted this action, claiming to have acquired this land through purchase, and prayed for and secured from the trial court a decree for the specific performance of the contract of sale. This contract has now been held unenforceable, and unless some provision is made by this court, the District may find itself deprived of the right to acquire this property through condemnation proceedings and at the same time be confronted with an action for damages for a large sum of money, the effect of which would be that the Shelbys, by the action of this court, would benefit through their own misconduct. To prevent injustice, and to prevent this happening, and to the end that equity and justice be done, the district court for Lincoln county, Nebraska, is directed to enter an order, if application is made therefor by the District, which is the appellee herein, within 10 days of the time the mandate of this court is filed with the clerk of said district court, to enjoin Camilla Bell Shelby and A. M. Shelby, the appellants herein, from instituting an action for damages, such injunction to be conditioned that the District proceeds at once to institute proper and regular condemnation proceedings in the county court of Lincoln county, Nebraska, to secure the title to such of plaintiffs’ land as is necessary for the construction and operation of the works of appellee, and such injunction
For the reasons stated in this opinion, the judgment of the district court is reversed, with directions that judgment be entered by .the trial court in conformity with this opinion.
Reversed.
