Eidemiller Ice Co. v. Guthrie

• Decision Date: 16 October 1894
• Citation: 42 Neb. 238,60 N.W. 717
• Parties: EIDEMILLER ICE CO. v. GUTHRIE ET AL.
• Court: Nebraska Supreme Court

42 Neb. 238

60 N.W. 717

EIDEMILLER ICE CO.

v.GUTHRIE ET AL.

Supreme Court of Nebraska.

Oct. 16, 1894.

Syllabus by the Court.

1. The owner of a mill, who has the right to maintain a pond or flow back the water of a stream upon the land of another, and to use such water to operate his mill, possesses, as to the water, the dominant right, and, while not the absolute owner of ice which may form on the pond, is entitled to have it remain there during the time and whenever its so remaining will be or is useful and necessary to the legitimate exercise of his right to use the water as motive power for the mill, or to successfully operate the mill; but the owner of the land, if upon a nonnavigable stream, may make any use he desires of ice which forms over and above so much of the bed of the stream to which his ownership extends as does not interfere with or injure the rights of the mill owner.

2. If the owner of a mill and the dam subservient thereto wantonly and unnecessarily draws the water from, or lowers the water in, the pond, and by so doing injures or destroys the ice privileges of the owner of land bordering upon the pond, he thereby renders himself liable in damages to such owner.

3. An injunction will not be granted or sustained where the injury complained of in the petition filed is not shown to be such as to be irreparable, or the party without a full and adequate remedy at law.

4. An injury may be said to be irreparable when it is of such a character or nature that the party injured cannot be adequately compensated therefor in damages, or when the damages which may result therefrom cannot be measured by any certain pecuniary standard (Wilson v. City of Mineral Point, 39 Wis. 164); and we will add if such as may be atoned for in damages, if in the particular case it is shown that the party who must respond is insolvent, and for that reason incapable of responding in damages, it is irreparable.

Appeal from district court, Nuckolls county; Hastings, Judge.

Petition by the Eidemiller Ice Company against Robert and David Guthrie for an injunction. From a decree for petitioner, defendants appeal. Reversed.W. F. Buck and H. W. Short, for appellants.

J. W. Green and Searle & Coleman, for appellee.

HARRISON, J.

March 9, 1891, the appellee herein, the Eidemiller Ice Company, hereinafter referred to as the “company,” instituted an action against Robert and David Guthrie, partners under the firm name and style of Guthrie Bros.; and, in order that a full understanding of the issues may be had, we think it best to copy the petition and answer. The original petition was demurred to, and an amended one filed, which was as follows: “Comes now the Eidmiller Ice Company,a corporation duly incorporated and doing business as such, and complaining of Robert Guthrie and David Guthrie, partners doing business under the firm name and style of Guthrie Bros., defendants, says: (1) That said plaintiff is duly incorporated under the laws of the state of Kansas, and doing business as such in the states of Kansas and Nebraska, and as such authorized to sue and be sued. (2) The said plaintiff is the owner of lots numbered three (3) and four (4) in section No. twenty-seven (27) in township No. one (1) north, range No. seven (7) west of the sixth P. M., in Nuckolls county, Nebraska, according to the United States survey thereof, and containing about forty acres of land. (3) That defendants are the owners of a milldam located on the Republican river, at about the distance of one thousand feet to the south of plaintiff's said premises, which has remained in the same condition as it now is for several years last past, which said dam backs the water up and upon plaintiff's premises, but confines the waters thereof, during the greater portion of the year, to the river bed of said Republican river, which is about two hundred feet in width at the point where it courses along and through plaintiff's said premises. (4) That upon and along the south and west line of plaintiff's said land and premises courses the said Republican river, which river is, and for a long time past has been, permanently dammed by said defendants as aforesaid, making the water in the bed of the river, where it courses along and through plaintiff's said premises, at an average depth of about five feet, at its usual stage and condition, while the mill of defendants is being operated, and said milldam used and kept in its usual condition for milling purposes and use, on which said river bed is annually frozen a large amount of ice, of great value to plaintiff. (5) That plaintiff purchased said premises described in the second paragraph of this petition for the purpose of erecting thereon ice-storage houses, and for the purpose of harvesting and storing the ice so frozen on said river bed, where it courses on, upon, and along plaintiff's said premises, and that plaintiff has expended large sums of money in constructing ice-storage houses on their said premises, to wit, the sum of about three thousand dollars ($3,000), and that plaintiff, in and about their said business of cutting and storing ice on said premises, have expended other and divers large sums of money, and that, in the conducting of plaintiffs' business, plaintiffs have now outstanding large and valuable contracts for the delivery of ice, by them to be cut and stored on said premises, and that plaintiffs so constructed their said storage houses and embarked in said business with the full knowledge of defendants, and without any objection on their part, and that plaintiffs now have their said storage house about half filled; and plaintiffs' said contract for future delivery of ice cannot be filled and kept on their part unless they are able to fill their storage house with ice, and their said storage and other improvements and expenditures will be of no use or value to plaintiff unless it is allowed to fill the same, all of which is necessary to be done. (6) That on or about the 9th day of March, A D. 1891, ice had formed on the surface of said river adjacent and opposite to the premises hereinbefore described as belonging to plaintiff, to a great thickness, to wit, about twelve inches, which said ice was merchantable and of great value, and that said plaintiff had, by its servants and agents, taken possession of and appropriated said ice adjacent to and opposite to said premises by surveying and marking the same off into squares and blocks, and had defined its said possession of said ice adjacent and opposite to said premises by marking and staking the same off into squares and blocks; and said plaintiff was then and there, by its servants and agents, engaged in cutting and removing said ice, and storing said ice for preservation in its said storage houses. (7) That on the 9th day of March, A. D. 1891, said defendants, in person, and by and through their orders and direction to their employés, did open the flood gates and spillways of their said dam across said river, for the sole and only purpose of drawing off the water from underneath the ice upon and along plaintiff's said premises, which plaintiff was then and there cutting and harvesting and storing as aforesaid, and that defendants might by so doing prevent plaintiff from so cutting and storing said ice, and that said defendants are preparing to, and threaten to, open still other flood gates and spillways for those purposes, and none other. (8) Said plaintiff says that if said defendants persist in so opening said flood gates and spillways, and drawing off said water, it will render it impossible for plaintiff to cut and harvest said crop of ice, for the reasons, among others, that it will allow said ice to rest upon the mud and slimy bottom of said body of water and river bed, covering the ice with mud and impurities, and cause it to crack and break into irregular pieces, and to honeycomb and float away when the water shall again rise thereunder; thus rendering it valueless, and impossible for plaintiff to cut and harvest and preserve the same fit for use. (9) That all of said acts of defendants in opening said flood gates and spillways, and in drawing off said water, were done, and are threatened to be done, without the consent of plaintiff. (10) That the injuries so caused to plaintiff and its said land and improvements, and its use and occupation thereof, and to plaintiff's said business, are continuing injuries; that plaintiff's improvements and storage house aforesaid are permanent, and calculated for and adapted to use as aforesaid from year to year. And, if defendants shall continue to so draw off said water and open said flood gates and spillways, plaintiff's premises and improvements will be rendered unfit for use, and the ice so by plaintiff taken possession of, marked off into squares, staked off, and taken possession of by plaintiff as aforesaid, opposite to and adjacent to their said premises, will be destroyed, and that, from the nature of the injury, damages cannot be computed in money, and the plaintiff has no adequate remedy at law. The plaintiff therefore prays for a temporary order of injunction restraining the defendants, and each of them, from opening said flood gates and spillways, and from drawing off the water from under said ice, either by themselves in person, of by their agents and employés, until the final hearing of the case, and that upon such final hearing said temporary order of injunction may be made perpetual, and that the plaintiff recover from the defendants the sum of five thousand ($5,000) dollars, its damages in the premises, and for such other and further relief as is just and equitable.”

To this the appellants filed their answer, and at a subsequent date filed an amended answer, as follows: “Come now the defendants, and, for their answer to the plaintiff's petition in this case, say: First. That said petition does not state sufficient facts to constitute a cause of action in this case in...