Kiwanis Club Foundation, Inc., of Lincoln v. Yost

• Court: Nebraska Supreme Court
• Writing for the Court: Heard before WHITE; McCOWN
• Citation: Kiwanis Club Foundation, Inc., of Lincoln v. Yost, 139 N.W.2d 359, 179 Neb. 598 (Neb. 1966)
• Decision Date: 14 January 1966
• Docket Number: No. 36044,36044
• Parties: KIWANIS CLUB FOUNDATION, INC., OF LINCOLN, Nebraska, a Corporation and Camp Fire Girls, Inc., a Corporation, Appellants, v. Levi YOST et al., Appellees.

Page 359

139 N.W.2d 359

179 Neb. 598

KIWANIS CLUB FOUNDATION, INC., OF LINCOLN, Nebraska, a Corporation and Camp Fire Girls, Inc., a Corporation, Appellants, v. Levi YOST et al., Appellees.

No. 36044.

Supreme Court of Nebraska.

Jan. 14, 1966.

Syllabus by the Court

1. Where a dam has been built for the private convenience and advantage of the owner, he is not required to maintain and operate it for the benefit of an upper riparian proprietor who obtains advantages from its existence; and the construction and maintenance of such a dam does not create any reciprocal rights in upstream riparian proprietors based on prescription, dedication, or estoppel.

2. The owner of a dam and the prescriptive right to overflow the land of upper riparian owners may abandon his rights, and may also return the river to its natural state by removing or destroying the dam.

Pierson & Pierson, Lincoln, for appellants.

Ivan A. Blevens, Seward, Marti, O'Gara, Dalton & Bruckner, Robert M. O'Gara, Lincoln, for appellees.

Heard before WHITE, C. J., and CARTER, BOSLAUGH, BROWER, SMITH and mCCOWN, JJ.

McCOWN, Justice.

This is an action for an injunction restraining the defendants from damaging and destroying a dam and to require them to replace and repair a portion of the dam already destroyed. The district court sustained a demurrer and a later motion to dismiss, and the plaintiffs have appealed.

The plaintiffs alleged that in 1924, a dam was constructed by the Nebraska Gas and Electric Company on the Blue River approximately 1 mile downstream from the property of plaintiff Kiwanis Club Foundation, Inc., which dam replaced a former dam constructed in 1887; that plaintiffs and their predecessors acquired their property and have improved it at great expense, and operated it as a camp and recreation area for Camp Fire Girls, Inc., for over 40 years in reliance upon the existence of the dam and the water level maintained thereby; that the plaintiffs, by ownership, possession, occupation, and user of their lands, and by prescription, have acquired rights in the existence of the dam and the flow of water and water level maintained by it; that the defendants, who are successors in interest to the builders of the dam, are barred by acquiescence and are estopped from damaging or interfering with such claimed rights; that the dam was used by power companies or districts until 1960 when it was abandoned for power purposes; and that defendants propose to destroy the dam and have damaged and destroyed a portion of it. The plaintiffs pray that the defendants be enjoined from damaging or destroying the dam and that they be required to replace and repair the portion of the dam already damaged and destroyed.

The plaintiffs, with admirable purpose, have carried out on their property a worthwhile project. In doing so, they have had the advantage for over 40 years of the favorable water level situation created by the defendants' dam. They now claim that this use has ripened into a right sufficient to require the defendants to maintain the dam, or at least sufficient to prevent the defendants from destroying it.

The amended petition alleged that the purposes and actions of the defendants are irrational and capricious. These are conclusions, and the court does not pass upon any issues involving malicious or malevolent use of property for the purpose of damaging another.

The issue here has received consideration on many occasions, although the premises and reasoning are greatly divergent. See Annotation, 88 A.L.R. 130. Aside from cases resting on contract, mutual consent, or grant, the theories upon which courts have sustained the right of upper riparian owners to continuation of conditions established by dams below them on the stream have varied widely. Some courts take the position that the originally artificial condition has become the natural permanent condition which cannot be affirmatively diverted or altered to the damage of other riparian owners. Others proceed on the theory that the upper owner acquires a reciprocal prescriptive right to enjoy the benefit of the improvement. Still others proceed upon the theory of estoppel, or upon the theory that the establishment of the artificial condition constitutes a...