58 Neb. 575 | Neb. | 1899
The plaintiff commenced this action in the district court of Dawes county, and in his petition pleaded, in
The appropriation theory of the defendants, as argued in the brief, is based upon the propositions that they were upper riparian proprietors and as such entitled to a reasonable use of water from the stream, which would include its employment for domestic purposes, for watering live stock, and for irrigation, and in this connec
The defendants in this action were not of parties to the suit in which the decree Avas rendered which they
The contract to which we have just referred as pleaded in the answer was to the effect that if the plaintiff in the present action, who was a party to the agreement, would not commence a suit to enjoin the other parties to. the contract from withdrawing water from the creek, they would refrain from the use of the water except as specified in the contract. ' One defendant and party to the contract, James Harley, answered in this suit that he had strictly observed the terms and obligations of the agreement, and there was sufficient evidence to sustain a finding that what he pleaded was true; hence the decree to the extent it is in his favor must be affirmed.
One of the other defendants in this action, F. B. Wood-ruff;, was not a party to the contract- E. F. Woodruff, his son, who signed the contract, it appeared, was not active in the use of the water, and the decree is right as to him. As to F. B. Woodruff, the evidence is clearly to the effect that he had committed the acts stated in the petition and without right. The decree as to him must be reversed and one entered in this court perpetuating the injunction against him.
We have not considered or discussed any questions which might arise under the statutory provisions of this state, for two reasons: one of Avhich is that they were
Judgment as indicated.