Faught v. Platte Val. Public Power & Irr. Dist.

• Decision Date: 11 January 1952
• Docket Number: No. 32987,32987
• Citation: 155 Neb. 141,51 N.W.2d 253
• Parties: FAUGHT et al. v. PLATTE VALLEY PUBLIC POWER & IRRIGATION DIST.
• Court: Nebraska Supreme Court

Page 253

51 N.W.2d 253

155 Neb. 141

FAUGHT et al. v. PLATTE VALLEY PUBLIC POWER & IRRIGATION DIST.

No. 32987.

Supreme Court of Nebraska.

Jan. 11, 1952.

Syllabus by the Court.

1. To obtain a review of errors of law occurring upon the trial of an equity case, a motion for new trial must be filed assigning the same therein.

2. Likewise, such alleged errors must be assigned and discussed in the brief filed in this court on appeal or they will not ordinarily be considered.

3. The right to use water for irrigation purposes may be acquired by contract with a common carrier irrigation corporation, and such contracts are generally governed by the same rules which pertain to other contracts.

4. Existing statutes and laws with reference to which a contract is made enter into and become part thereof, subject to appropriate legislative limitations subsequently enacted under the police power of the state, and such principle embraces alike those which affect its validity, construction, discharge, and enforcement.

5. Thus when a statute prescribes a duty and a contract is made involving performance of that duty, such statute becomes a part of the contract, or where the law authorizes the regulation of service rendered the public, such law becomes a part of and controls contracts providing for the public service.

6. Where from the nature of a contract it is evident that the parties contracted on the basis of the continued existence of a condition or state of things to which it relates, the cessation of existence of the condition will excuse performance, a condition to such effect being implied in spite of the fact that the promise may have been unqualified.

7. A construction conferring a right in perpetuity will be avoided unless compelled by unequivocal language of the contract, and a contract will not be construed as imposing a perpetual obligation when to do so would be adverse to public interests.

8. A purchaser of land from one who holds a water right contract thereon with an irrigation company and who takes title thereto by deed containing ordinary covenants of warranty with no reference to the question of water rights and who refuses to accept water from the company is not personally liable for the maintenance fee mentioned in the water right contract between the grantor and the irrigation company, and, for want of privity of estate, an action cannot be maintained against him to recover a personal judgment therefor.

9. An agreement to pay an irrigation corporation maintenance charges as consideration for the right to use irrigation water upon land is not a covenant running with the land in the absence of privity of estate, which can be created only in connection with a grant of the land sought to be charged or an estate therein, or the equivalent thereof, and the grant of a right to use irrigation water belonging to the public to be conveyed to the land by the corporation is not a right in land or the equivalent thereof.

10. An irrigation corporation does not become the owner or proprietor of the water that it conveys as a public commodity. It is only the servant of the public to carry it to the land for which it has been appropriated, and in such respect stands on the same footing as a common carrier.

11. No private estate can be created in property belonging to the public or devoted to a public use, and a consumer of irrigation water who is not a stockholder in the corporation cannot have a water right in the sense that it is a private freehold interest in the real estate of the distributing irrigation corporation because his right is simply a right of service.

12. The exercise and enjoyment of such right of service does not create an easement in the property of the corporation or the consumer but simply is a right of service to be rendered him by a common carrier public utility subject to regulation and control of the state in such manner as may be prescribed by law.

13. A contract with an irrigation corporation for the use of water is executed with reference to the statutes and laws prescribing its authority, which become a part of the contract. The subsequent purchase of such corporation by a public power and irrigation district does not of itself, without appropriate legislative action or consent of the consumer, actual or implied, make the statutes and laws under which it was authorized to organize and operate a part of the original contract made with the irrigation corporation.

14. Where a contract requires successive steps to be taken by the respective parties, if, when a step becomes due, one party either in words or by their equivalent in acts, declines to take it or is unable to do so while the other is ready and willing to do his part, the latter may rescind the contract.

Crosby & Crosby and Beatty, Clarke, Murphy & Morgan, North Platte, for appellant.

Smith Brothers, Lexington, for appellees.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

CHAPPELL, Justice.

Plaintiffs brought this suit in equity to cancel and rescind a water right deed and contract and quiet title to described farm land owned by them as against the same because of material changed conditions and abrogation of the deed and contract by defendant. Defendant for answer and cross-petition denied generally and specifically plaintiffs' right to relief prayed and sought a personal judgment against plaintiffs for increased annual water service maintenance charges allegedly due and unpaid by them for the years 1948, 1949, and 1950.

After hearing upon the issues the trial court rendered a decree which cancelled and terminated the contract as of December 3, 1949, the time when notice of rescission was operative, quieted the title to plaintiffs' land against the same, free and clear of any liens for maintenance charges accruing after December 3, 1949, upon condition, however, that plaintiffs pay into court for the benefit of defendant the sum of $521.91, with interest at 7 percent within 60 days from date of the decree, and in event of default thereof the judgment and decree entered upon plaintiffs' petition should be vacated and set aside. Defendant's cross-petition was dismissed without prejudice to a future action for foreclosure of such unpaid liens arising from the contract.

Defendant's motion for new trial was overruled, and it appealed, assigning substantially that the judgment was not sustained by the evidence but contrary thereto, and contrary to law. We conclude that the assignments should not be sustained. Plaintiffs did not cross-appeal.

At the conclusion of the trial, but after argument and submission, defendant asked leave in open court to amend the prayer of its cross-petition, reducing its interest demand from 9 percent to 7 percent, and praying that any judgment awarded for maintenance service charges should be declared a lien upon plaintiff's property and a foreclosure thereof should be decreed. The request with regard to interest was granted. The other part of the request was denied without prejudice to future action brought for that purpose. In defendant's brief it was argued that the trial court thus erred. In that regard, however, it appears from the record that defendant did not assign such alleged error either in its motion for new trial or in its brief filed in this court. The applicable rule is that to obtain a review of errors of law occurring upon the trial of an equity case, a motion for new trial must be filed assigning the same therein. Oertle v. Oertle, 146 Neb. 746, 21 N.W.2d 447. Likewise, such alleged errors must be assigned and discussed in the brief filed in this court on appeal, or they will not ordinarily be considered. Hartman v. Hartmann, 150 Neb. 565, 35 N.W.2d 482. In any event, however, the form of the judgment was such that in the light of our conclusions herein, defendant could not have been prejudiced in any manner by the court's refusal to permit the amendment.

The facts are not in dispute. The record discloses that in March 1935, Hastings College owned the farm lands here involved. On and prior to that time, Dawson County Irrigation Company was a privately organized and operated Nebraska common carrier public service utility corporation, with a water appropriation from the state. On March 2, 1935, the College entered into a written contract with such corporation whereby it sold and conveyed to the College and to its heirs and assigns 'the right to use water from the canal of the' corporation, including a pro rata share of its available contractual reservoir waters 'during the irrigation season of each year, in an amount not exceeding' a designated rate 'to be used upon and for the purpose of irrigating' the described lands here involved. The consideration therefor was $750 paid in cash by the College and payment by it 'annually in advance, on or before the first day of March in each and every year, the further sum of one and 50/100 ($1.50) Dollars, per acre of the land above described, as an annual maintenance charge' which payments were made a lien upon the land from the date when they became due, plus, as further consideration, a waiver and release of any and all claims then existing in favor of the College for loss or damage by reason of any leakage, seepage, breakage, or overflow from any of the canals, laterals, sub-laterals, or ditches of the corporation to any land owned or controlled by the College, together with a conveyance of a right-of-way through the land for the canal and the laterals of the corporation as then constructed upon the land.

The contract contains no date of termination except as hereafter recited, and it was agreed therein that 'this contract shall have the force and effect of a covenant running to and with the said land * * * for above described, and the canal * * *.' It provided that 'The water to be furnished under this agreement is intended to form a part of the appurtenances to the said...