34 Neb. 723 | Neb. | 1892
This is a proceeding in ad quod damnum brought by the plaintiff against the defendants to condemn the defendants’ property on Salt creek, at -Ashland, for the purpose of erecting a mill-dam. On the trial of the cause in the court below the court found the issues in favor of the defendants and dismissed the action. It appears from the evidence that in the year 1862 Dennis Dean erected a mill-dam and grist mill on Salt creek about forty rods up the stream from the point where the plaintiff desires to erect a mill-dam and mill; that this mill was propelled by the water power thus created, and was under the control of Dean until 1883, when he sold the mill and appurtenances, together with the water power, to E. A. Wiggenhorn and. Henry Schluitz; that they entered into possession, and operated the mill for some time, when Schluitz died, leaving a widow and four children, who are defendants in this action; that at the time of his death at least two of the children were minors and the son had not reached his majority when this action was brought. . About the .year 1885 the mill was burned, and the next year a considerable portion of the dam was washed out. The amended petition for condemnation was filed in the district court on the 30th day of March, 1888, the date when the original was filed does not appear. It is admitted that if the plaintiff is permitted to erect a dám eight feet in height at the point he desires to erect the same, it will back water up on the defendants’ mill-site to the depth of about seven feet and practically destroy it. The defendants at
The rule is that where the common interests of the defendant can be severed, the protection of the statute of limitations extends no further than to him within its provisions; but where no such severance can be made, and the protection of the statute cannot be secured without covering other interests, the benefit of the statute in favor of one inures to the benefit of all. (Moore v. Armstrong, 10 O., 11; Meese v. Keefe, Id., 362; Riddle v. Roll, 24 O. St., 572; Sturges v. Longworth, 1 Id., 562.) In the case at bar the interests of the defendants are joint and at least one of them was under age, and there is testimony tending to show that this was one of the main hindrances to the erection of a new mill. However this may be, he would not be in default until he become of age, and this same cause operated in favor of all to prevent a forfeiture of the right to erect
Affirmed.