Brewster v. Meng

• Decision Date: 03 May 1906
• Docket Number: 14,171
• Parties: BENJAMIN F. BREWSTER ET AL. v. JENS C. MENG
• Court: Nebraska Supreme Court

107 N.W. 751

76 Neb. 560

BENJAMIN F. BREWSTER ET AL. v. JENS C. MENG

No. 14,171

Supreme Court of Nebraska

May 3, 1906

ERROR to the district court for Sioux county: WILLIAM H. WESTOVER JUDGE. Affirmed.

AFFIRMED.

Allen G. Fisher, for plaintiffs in error.

N. K Griggs, contra.

DUFFIE C. ALBERT and JACKSON, CC., concur.

OPINION

DUFFIE, C.

A former opinion in this case is reported in Meng v. Coffey, 67 Neb. 500, 93 N.W. 713. The case was remanded to the district court with the following directions: "To make new and further findings of fact in conformity with said opinion, and to enter a decree enjoining the defendant Wilcox from wasting or unreasonably diminishing the waters of Munroe creek, and enjoining the defendants Brewster and Coffee from consuming all the waters of Warbonnet and Hat creeks, respectively, in the irrigation of their lands, or permanently diverting in any year a greater proportion of the water in such streams for the time being than they were accustomed to take out prior to 1893, having regard to the nature of the season and the condition of the stream at the time; that proportion and other questions of fact necessary to the rendition of such a decree to be ascertained from the evidence already taken or by taking further evidence at the discretion of the district court." Upon the filing of the mandate in the district court the defendants Brewster and Coffee asked leave to file a supplemental answer, in which it was alleged that by a finding of the state board of irrigation made in 1889 the said defendants were awarded a prior right to the waters in controversy in this action. The court refused to allow the filing of such supplemental answer or to receive any additional evidence in the case, and thereupon entered a decree conforming to the directions contained in the mandate.

The two principal questions urged on this appeal are that the former opinion is erroneous, and that the court erred in refusing to allow the plaintiffs in error to tender additional issues and to introduce evidence in support thereof. We have again examined the opinion in Meng v. Coffee supra, and are entirely satisfied that the opinion correctly reflects the law applicable to the facts disclosed by the record as it then stood. It would serve no useful purpose to review the former opinion, nor, indeed, do we think that we could add anything to what is there said in support of the views...