Cline v. Stock

• Decision Date: 04 February 1904
• Docket Number: 13,050
• Citation: 98 N.W. 454,71 Neb. 70
• Parties: J. H. CLINE, APPELLANT, v. F. A. STOCK ET AL., APPELLEES. [*]
• Court: Nebraska Supreme Court

98 N.W. 454

71 Neb. 70

J. H. CLINE, APPELLANT, v. F. A. STOCK ET AL., APPELLEES. ^[*]

No. 13,050

Supreme Court of Nebraska

February 4, 1904

APPEAL from the district court for Hitchcock county: GEORGE W NORRIS, JUDGE. Reversed.

REVERSED.

Samuel J. Tuttle and A. S. Tibbets, for appellant.

F. I Foss, F. M. Flansburg, W. S. Morlan, Ralph D. Brown and Hainer & Hainer, contra.

HASTINGS C. AMES and OLDHAM, CC., concur.

OPINION

HASTINGS, C.

The plaintiff in this action, after describing the character and course of the Republican river, alleges ownership, ever since 1873, by himself and his grantors, of a 200 barrel a day flouring mill erected upon his lands, through and along side which the river flows at Concordia, Kansas, requiring for its propulsion 70 horse power, 200 cubic feet of water a second under an 8 foot pressure; that this was abundantly furnished by the river until the facts complained of; that the mill cost him $ 25,000 and the water power was of the value of $ 3,000 a year; that since 1894 there has not been enough water to propel the mill during the months of June, July and August; that its volume has steadily diminished during that time, and for the last two years, including 1901, the river has been, during these months, entirely dry, and that this is because of the "unlawful and wrongful acts of the defendants and each of them"; that they have "diverted the waters of the Republican river and its affluents therefrom, pouring the same into the land adjacent, where they have become absorbed for irrigation purposes"; and plaintiff alleges his damage at $ 10,000 a year; he sets out that the amount of water taken by each of the several defendants amount in the aggregate to 317 cubic feet, and 1,459 inches a second, and says this is taken mainly through the months of June, July and August; he says that the defendants have made plans, appliances and arrangements to continue this diversion of the water, and will do so, unless prevented by the court; that such diversion is contrary to the constitution of the state of Nebraska, and that of the United States, in taking away his riparian rights and so depriving him of his property without process of law; that plaintiff's priority and right to use the water was recognized by local customs, laws and decisions of the courts in the states of Kansas and Nebraska, and no offer of compensation has been made him; that the defendants' acts are contrary to section 2339 of the Revised Statutes of the United States and that this section acknowledges and confirms the plaintiff's rights; that the action for injunction is brought to save multiplicity of suits at law, and also for the reason that plaintiff has no adequate remedy at law. An injunction is asked against all of the defendants, restaining them from diverting the waters of that river and its affluents and not returning the same into the channel.

Separate demurrers were filed by the several parties. Most of them on three grounds: (1) Improper joinder of causes of action; (2) No facts sufficient to constitute a cause of action; (3) Because the petition is for an injunction alone, and shows no ground for one. One of the demurrers adds a fourth ground, a lack of jurisdiction, as it is an attempt to adjudicate matters in dispute between states.

The demurrers were sustained, and plaintiff elected to stand upon his petition, and judgment of dismissal was entered, from which the plaintiff appeals. He insists that his petition disclosed a right to an injunction; that as riparian owner he had the right to the unimpaired flow of the river; that he had such right by prescription dating from 1873; that, if the doctrine of appropriation is held to prevail, his appropriation was prior in time, was the best right, and is protected by the Nebraska and the federal constitutions; that this right has been impaired by the defendants; that his remedy at law is inadequate, and that the interposition of equity is necessary to prevent a multiplicity of suits.

Defendants, on the contrary, assert rights on the basis of the fact that the Republican river is meandered in the United States survey, and should be held a navigable stream. It is sufficient to say as to this that the petition alleges that it is not a navigable stream, and sets up ownership of its bed and banks in the plaintiff, which is admitted by the demurrer.

The defendants also urge that the common law is in force in Nebraska, except so far as modified by statute, and that the common law permits no appropriation of streams and no prescriptive right as against an upper owner. This seems to be the effect of the holdings in Clark v. Cambridge & Arapahoe Irrigation & Improvement Co., 45 Neb. 798, 64 N.W. 239; Slattery v. Harley, 58 Neb. 575, 79 N.W. 151; Crawford Co. v. Hathaway, 67 Neb. 325, 93 N.W. 781, and Meng v. Coffey, 67 Neb. 500, 93 N.W. 713. In paragraph four of defendants' brief, they seek to find under the common law doctrine, that the stream as a whole belongs to each owner and that each has a right to a reasonable use of it, authority for their action in taking, as plaintiff alleges and the demurrers admit, all of the water out of this stream during the three summer months. The general statements of the rights of each riparian owner to a reasonable use of the stream are cited from various text writers and decisions. That any court has ever held that, in the exercise of common law rights, even a riparian owner was at liberty to take out all the water and leave the stream dry for three months in the year, these citations do not show. The most that has been held allowable in any of the cases cited was a reasonable diminution for purposes of irrigation in the amount of flow, and that equity would not enjoin the use of a stream for irrigation, merely that it might run by in unimpaired quantity for one who was making no use of it.

It is urged that the legislature in this state by section 43 article 2, chapter 93a, Compiled Statutes (Annotated Statutes, 6797), has provided, that the right to divert unappropriated water of natural streams shall never be denied, and that priority of appropriation shall give a better right between those using water for the same purpose, but that those using water for domestic purposes shall have preference over all others; and those using it for agriculture have a preference over those using it for manufacturing; that the allegation of the petition that the diversion is unlawful is a mere conclusion; that the diversion of the water is presumed to be in accordance with law, and that, as the petition alleged that the water is "absorbed for purposes of irrigation," it will be presumed to have been taken out under rights derived properly from this state, therefore no right to interfere with it exists on the plaintiff's part. It is urged that the United States statute of 1866 has reference only to the public lands and furnishes no countenance to the riparian rights claimed by plaintiff, in the absence of any allegation bringing those rights under that statute. It is also urged that if there has been any interference with plaintiff's rights his remedy is, in the first place, not by injunction, but by a suit for damages; and, in the second place, he has shown such laches in permitting the irrigation works to go on, that he is entitled to no remedy in equity. It is finally urged that the action is an attack upon the sovereignty of Nebraska; that it is an action brought by one living in Kansas for the diversion of water within the state of Nebraska, and is an attempt by one without the state of Nebraska to assert a right which is in contravention of the laws of this state, and can not therefore be recognized by this state's tribunals. These several reasons may be summarized thus: (1) Use for irrigation purposes by the defendants appears from this petition; such a use by the upper proprietor is reasonable, even if it takes all the water in the stream, as against a lower proprietor who is already using it to propel his mill. (2) The statutes of the state of Nebraska give to the irrigation user priority over the user for manufacturing purposes, and this authorizes a taking of all the water in the stream for irrigation purposes, without regard to the injury that may be caused to lower proprietors, who are already using it for manufacturing purposes. (3) This mill is situated in...