Harris v. Steele
| Decision Date | 21 April 1923 |
| Docket Number | 23242 |
| Parties | JOHN HARRIS ET AL., APPELLEES, v. CHARLES STEELE ET AL., APPELLANTS |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Buffalo county: BRUNO O HOSTETLER, JUDGE. Affirmed.
AFFIRMED.
W. D Oldham and W. E. Balcom, for appellants.
Sinclair & McDermott, contra.
Heard before MORRISSEY, C. J., LETTON, ROSE, DAY and GOOD, JJ.
John Harris and others, plaintiffs, obtained a judgment in the district court for Buffalo county enjoining Charles Steele and others, defendants, from flowing water over and across the plaintiffs' lands; from building a ditch across plaintiffs' lands; and from otherwise trespassing thereon. From this judgment the defendants appeal.
It appears that on December 15, 1921, Charles Steele, one of the defendants, was granted the right by the department of public works of the state to divert five cubic feet of water per second from the main channel of the Platte river for irrigation purposes. Steele's application to the board recited that the lands intended to be irrigated were located in section 14, township 8, range 18, in Phelps county, and comprised a tract of about 380 acres, of which 80 acres were owned by Steele, and the balance by three others. His application also recited that it was proposed to locate the headgate on the south bank of the main channel of the Platte river where it intersects the southwest quarter of the southwest quarter of section 7, township 8, range 18, in Buffalo county. It thus appears that the lands proposed to be irrigated were some four miles distant from the headgate. The project contemplated that the water taken from the river was to be conducted from the intake over and across an old channel or stream connecting the main channel with the south channel for a distance of about a mile and a quarter, and thence along the south channel of the river to a point in section 15 where the water was to be diverted and conducted by canals to the lands proposed to be irrigated. The old channel or stream connecting the main channel with the south channel is referred to in the evidence as the "Harris channel." The testimony shows that the title to the bed of the Harris channel is in the plaintiffs. There is a direct conflict in the testimony as to whether in recent years any water has flowed through the Harris channel, the testimony in behalf of the plaintiffs indicating that no water flowed through the Harris channel except when the water in the main channel of the river was at a high stage. On the other hand, the testimony of the defendants indicated that there was water in the Harris channel whenever there was any water flowing in the river. It appears that the plaintiff Harris had erected a dam at the mouth of the Harris channel to prevent...
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