Froemke v. Parker

• Decision Date: 28 May 1918
• Citation: 169 N.W. 80,39 N.D. 628
• Court: North Dakota Supreme Court

169 N.W. 80

39 N.D. 628

ROBERT R. FROEMKE and Herman A. Froemke, Substituted in the Place of Albert Froemke, Plaintiffs and Respondents, and PETER OLSON and Ingebor Sunby, Interveners and Respondents, v. W. S. PARKER and L. Altmann, Defendants and Appellants

Supreme Court of North Dakota

May 28, 1918

Appeal from the District Court of Ransom County, Honorable Frank P Allen, Judge.

Defendants appeal.

Motions denied, with $ 25 costs.

Motion denied, with $ 25 costs.

Kvello & Adams, for appellants.

Pierce Tenneson, & Cupler, for respondents.

ROBINSON J. GRACE, J., concurring in the result.

OPINION

ROBINSON, J.

This action is brought by the plaintiff and interveners to permanently restrain the defendants from constructing and maintaining a drain so as to cause a large and unwonted flow of water from the land of the defendants onto the lands of the plaintiffs and interveners. On April 7, 1917, judgment was given that the defendants be permanently restrained from continuing the construction of the drain running from a slough on the land of the defendant Parker (east half sec 26-135-55), thence across the land of defendant Altmann, and from keeping said drain open, and from draining the waters of said slough over and upon the land of the plaintiffs and interveners; and, also, that the plaintiffs and interveners recover from the defendants costs and disbursements amounting to $ 105.80.

On June 27, 1917, defendants appealed to this court from the whole of the judgment. They gave a regular appeal bond in the sum of $ 250, and in lieu of giving a stay bond they stopped the flow of water through the tile drain which they had constructed. On June 11, 1917, counsel for defendants wrote to counsel for plaintiffs a letter (exhibit "B"), which stated: "We have decided to appeal the Parker lake decision and will submit notice and appeal bond to you this week. To avoid further litigation in the event that the decision is affirmed, we will shut off the flow of water from the Parker lake. We will guarantee that none of the water will reach your tile, and therefore, the bond will be for the appeal costs only." On June 21, 1917, they wrote: "We do not want to do anything to affect the interest of our client pending the litigation, and to that end will take immediate steps to absolutely stop every bit of water coming through the tile."

Now because the defendant did actually stop the flow of water and...