Arterburn v. Beard
| Decision Date | 05 May 1910 |
| Docket Number | 15,944 |
| Citation | 126 N.W. 379,86 Neb. 733 |
| Parties | ELLSWORTH E. ARTERBURN, APPELLANT, v. BENJAMIN BEARD ET AL., APPELLEES |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Chase county: ROBERT C. ORR JUDGE. Affirmed.
AFFIRMED.
Morlan Ritchie & Wolff, for appellant.
C. W Meeker and P. W. Scott, contra.
The plaintiff is the owner of a ranch in Chase county consisting of over 2,000 acres of land, the title to the several tracts of which it is composed he acquired in 1902, 1903 and 1904. The Frenchman river runs through a portion of the land. At the time the plaintiff became the owner of the premises a dam was in existence across the river at a point near the S. E. corner of the S. E. 1/4 of section 11, township 6, range 41, which created a pond extending over a portion of that quarter section and over a portion of the S.W. 1/4 of section 12, covering in all about 40 acres. From this pond two irrigation ditches ran, one on the north side and the other on the south side of the river; the south ditch running through a portion of sections 13 and 14.
This action was brought against the defendants, who claim to be the owners of certain water rights and to be entitled to maintain and operate the dam and irrigation ditches over the plaintiff's lands. The petition is long and involved, but, in substance, it alleges that the defendants maintain and operate the ditches and dam without legal right or authority; that they have cut the fences of plaintiff's hog pasture, and have fenced along each side of the south ditch, excluding the plaintiff from the river and depriving him of the use of its waters for watering his hogs; that they threaten to destroy the fences that plaintiff has built or may hereafter build across said ditch, and that they refuse to build any bridges or crossings, and threaten to make it impossible for him to pass from one part of his ranch to the other. It denies that they ever instituted condemnation proceedings for the purpose of appropriating the water, or the land for ditches and reservoir, and alleges that defendants threaten by force to maintain the dam and ditches. The prayer is for an injunction to restrain the threatened trespasses, for an accounting of the damages already sustained, and that defendants be adjudged to have no right or interest in or to the plaintiff's lands.
The answer pleads ownership of the ditches and dam; that defendants had permission and authority to construct, maintain, and operate the dam and ditches; that they were constructed in 1894, and that defendants have ever since been in the open, adverse, and continuous possession of the same and the lands necessarily used in the operation of the same, and that the right of action, if any, is now barred by the statute of limitations.
The reply alleges that the lands on which the dam and ditches were built were mortgaged at the time of their erection, and that the mortgages were foreclosed, and all right and title of defendants were barred and foreclosed.
The evidence shows that in December, 1894, and early in 1895, when the defendants erected the dam and excavated the ditches, they received permission to do so either by parol or in writing from the several owners of the lands over which the dam and ditches were constructed, or from persons purporting to be their agents, and that considerations of divers kinds were given for these rights. After obtaining license or permission to enter, the defendants incurred much expense and performed a great deal of labor in the erection of the dam and the excavation of the ditches; the dam constructed being about 300 or 400 feet long, 15 or 20 feet wide at the top, and 20 feet high at the highest point, and the ditches several miles in length. When the plaintiff purchased the lands, they were in full possession of the irrigation system, maintaining the same and operating it during the crop season. The plaintiff was familiar with the locality and knew of the existence and use of this irrigation system at the time he bought the land. He was, therefore, charged with notice of the easement claimed by the defendants. The estate that he purchased was servient to this easement, and he bought subject thereto. McLure v. Koen, 25 Colo. 284, 53 P. 1058; Snowden v. Wilas, 19 Ind. 10, 81 Am. Dec. 370; Cook v. Chicago, B. & Q. R. Co., 40 Iowa 451; Franklin v. Pollard Mill Co., 88 Ala. 318, 6 So. 685; Hodgson v. Jeffries, 52 Ind. 334; Stephens v. Benson, 19 Ind. 367; Znamanacek v. Jelinck, 69 Neb. 110, 95 N.W. 28.
The contention of plaintiff, that the defendants have no valid title either by grant or condemnation proceedings, we think cannot be sustained. As to the tracts over which they were given a parol license by the owners to construct their system, when they expended their time and money in the construction of the dam, ditches, flumes, etc., the contract was complete when the work had been performed, and as long as kept up the license was irrevocable. Gilmore v. Armstrong, 48 Neb. 92, 66 N.W. 998; Johnson v. Sherman County I., W. P & I. Co., 71 Neb. 452, 98 N.W. 1096. While as to the lands over which there is no proof that the actual owner gave permission, and as to which it is shown the defendants took actual possession under a claim of right and over which they have operated for twenty years, the statute of limitations fully protects them against the plaintiff's claim. For these reasons, the plaintiff, when he bought the land, took it charged with the easements then held by the defendants, and their title as against him on that account is perfect.
The foregoing considerations apply as to defendants' rights over all of the land except two tracts. One of these, the S E. 1/4 of section 11, upon which the larger part of the dam and most of the pond is situated, was owned in 1888 by one William C. Gilham. On December 15 of that year he executed a mortgage to the Sullivan Savings Institution to secure a loan. The other tract, described as the W. 1/2 of the N. W. 1/4 of section 11, which is traversed by one of the ditches, was in 1888 owned by Jasper W. Toothacre. On April 24, 1888, Toothacre executed a mortgage to Carlos C. Burr to secure the payment of a note. These mortgages were soon afterwards filed for record. On the 8th of December, 1894, the defendants Benjamin Beard and Eli Maranville, together with one Martin Overtree, posted notice of appropriation of the waters of the Frenchman river under the act approved March 24, 1889, at the place of diversion on the Gilham tract, and this notice was on the 15th of December, 1894, duly filed with the county clerk of Chase county. The interest of Martin Overtree was afterwards purchased by the defendant Logan Maranville. The right to occupy the land with the dam and pond was purchased from one Young, who was then the owner of the equity in the land, but, so far as the record...
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