Kuhlmann v. Platte Val. Irr. Dist., s. 34309

• Decision Date: 25 April 1958
• Docket Number: Nos. 34309,34310,s. 34309
• Citation: 89 N.W.2d 768,166 Neb. 493
• Parties: Orvil E. KUHLMANN, Appellee-Cross-Appellant, v. PLATTE VALLEY IRRIGATION DISTRICT, a corporation, Appellant-Cross-Appellee. Emmett P. KUHLMANN and Willard D. Kuhlmann, Appellees-Cross-Appellants, v. PLATTE VALLEY IRRIGATION DISTRICT, a corporation, Appellant-Cross-Appellee.
• Court: Nebraska Supreme Court

Page 768

89 N.W.2d 768

166 Neb. 493

Orvil E. KUHLMANN, Appellee-Cross-Appellant, v. PLATTE VALLEY IRRIGATION DISTRICT, a corporation, Appellant-Cross-Appellee.

Emmett P. KUHLMANN and Willard D. Kuhlmann, Appellees-Cross-Appellants, v. PLATTE VALLEY IRRIGATION DISTRICT, a corporation, Appellant-Cross-Appellee.

Nos. 34309, 34310.

Supreme Court of Nebraska.

April 25, 1958.

Syllabus by the Court

1. The owner of real estate has the legal right to use and operate it free from repeated acts of trespass, and an injunction will be granted to restrain such acts especially where committed under a claim which indicates a continuance of the trespass.

2. In such cases equity looks to the nature of the injury inflicted and the fact of its constant repetition rather than to the magnitude of the damage inflicted as the ground for granting relief.

3. A party may at any time invoke the language of the pleading of his adversary on which the case is tried, on a particular issue, as rendering certain facts indisputable and in so doing he is neither required nor permitted to offer the pleading in evidence.

4. An admission made in a pleading on which the trial is had is more than an ordinary admission. It is a judicial admission and constitutes a waiver of all controversy so far as the adverse party desires to take advantage of it and is therefore a limitation of the issues.

5. A judicial admission is a formal act done in the course of judicial proceedings which is a substitute for evidence, thereby waiving or dispensing with the production of evidence by conceding for the purpose of litigation that the subject of the admission is true.

6. A judicial admission is ordinarily final and conclusive upon the party by whom it is made unless the trial court, in the exercise of a judicial discretion, timely relieves him from that consequence.

7. This court may in an equity case give proper consideration to the fact that the trial court inspected the premises and physical matters involved and that its examination thereof constituted evidence because the relevant facts observed necessarily affected the mind of the court and tended to influence belief or unbelief on the matters at issue in the cause.

8. The use and enjoyment which will create title by prescription to an easement is substantially the same in quality and characteristics as the adverse possession which will give title to real estate. The use and enjoyment must be adverse, under claim of right, continuous, open, exclusive, with the knowledge and acquiescence of the owner of the servient tenement, must continue for the full prescriptive period, and must be substantially identical.

9. To establish a prescriptive right to an easement all of the elements of a prescriptive use and enjoyment must be established by clear, convincing, and satisfactory evidence.

10. If an easement is acquired by prescription, the extent of the right is fixed and determined by the user in which it originated. To establish an easement by prescription the evidence must show the extent of the adverse user for a period of 10 years.

11. An alleged easement that is too indefinite for a determinate description cannot be established and protected by a court of equity. 12. A stipulation in writing of attorneys concerning the manner of the trial of the case, approved by and made an order of the court, is binding upon the parties and the court and a judgment rendered in the case contrary to the stipulation is prejudicially erroneous.

13. Stipulations in writing voluntarily entered into between the parties to a cause or their attorneys for the government of their conduct and the control of their rights during the trial or the progress of the cause will generally be respected and enforced by the courts if such stipulations are not contrary to good morals or sound public policy.

14. Courts should enforce valid stipulations unless good cause is shown for declining to do so, especially where the stipulation has been acted upon so that the parties may not be placed in status quo.

Baskins & Baskins, North Platte, for appellants.

Crosby, Crosby & Nielsen, North Platte, for appellees.

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

BOSLAUGH, Justice.

The purpose of this litigation is to prevent appellant by permanent injunction from discharging water from a lateral of the district into Scout Creek and transporting it thereby to and into the North Platte River; the recovery from appellant of damages caused appellees, as they claim, by discharging irrigation water from the works of the district into Scout Creek; and general equitable relief.

The issues of these cases relating to the right of appellees to have a permanent injunction against appellant preventing it from discharging irrigation water from its works into Scout Creek were by stipulation of the parties and the approval and order of the trial court tried simultaneously and the proof offered and received on the trial of these issues was made part of the record of each of the above-described cases. There was an appeal to this court in each of the cases from the findings and judgment of the trial court of the issues concerning the remedy of injunction and the appeals in this court, identified as case No. 34309 and case No. 34310, were by this court consolidated. The appeals are essentially identical and will be disposed of as though there was but a single appeal. The appellees in the two appeals will be referred to by the respective name of each or collectively as appellees.

Appellees alleged in substance, as the basis for the permanent injunction they sought, these matters:

Orvil E. Kuhlmann is the owner of parts of Section 19, Township 14 North, Range 30 West of the 6th P. M., Lincoln County, described in detail in the petition in the case brought by him. Emmett P. Kuhlmann and Willard D. Kuhlmann are the owners of parts of Sections 19 and 29, Township 14 North, Range 30 West of the 6th P. M., Lincoln County, described in the detail in the petition in the case brought by them.

Scout Creek, a natural watercourse, meanders over and across the lands of appellees. Appellant, a Nebraska corporation and an irrigation district, has acquired and uses ditches to carry water for irrigation purposes west, northwest, and southwest of the lands of appellees and in the vicinity of Scout Creek. Scout Creek, under natural conditions, transports a small stream of water except when its flow is augmented by run-off waters caused by heavy rain in the area which it drains and thereby Scout Creek has in instances run bank full prior to the happening of the matters complained of herein but the creek has only infrequently experienced flood stage from natural causes. Appellant caused a ditch to be excavated between its irrigation system and Scout Creek west of the lands of appellees to permit waters not used by irrigators along the irrigation system of appellant of discharge and flow into and through the creek to the river east of the lands of appellees. Scout Creek has within the last 4 years, due to the water placed therein by appellant by the means aforesaid, overflowed its banks frequently each year; has thereby flooded the lands of appellees; and has caused them continuing and increasing and irreparable damage to their lands and annual crops planted and growing thereon. Water put by appellant into the creek has caused it to change its course, has caused continuing and increasing erosion, has washed out bridges, has endangered buildings, and has substantially lowered the water table of the lands of appellees. The flooding of the lands of appellees, because of the situation which exists, causes the water to be trapped upon their lands so that the productivity of the flooded lands has been destroyed. Appellees have utilized and exhausted the means known to them to prevent and minimize the damage done and threatened to their land and property by the water discharged by appellant into Scout Creek as aforesaid without material or successful result. Appellees have advised appellant of the facts and requested and demanded that the condition created by it be remedied but appellees have secured no permanent relief by consultation with or demands made upon appellant in this regard. The officers of appellant have advised appellees that nothing can be done to improve their situation and that appellant must continue to discharge irrigation waters into the creek as it has done in the past because of the nature of the operation of appellant. Scout Creek has been and is unable to accommodate within its banks the discharge of water from the system of appellant into it during the last 3 or 4 years and the available remedy for the situation of which appellees complain is the prevention of the discharge of irrigation water from the works of appellant into Scout Creek.

Appellant by answer admitted the ownership of the lands described in the petitions of appellees and that Scout Creek crosses their lands, denied all other matters pleaded by appellees, and alleged new matters as follows:

Scout Creek has two branches west of the lands of appellees. One extends more than 5 miles to the southwest and the other about 3 miles northwest from where they converge near the west line of Section 19, Township 14 North, Range 30 West of the 6th P. M., in Lincoln County. Appellant has an irrigation lateral, known as lateral No. 23, the course of which is recited in detail in the answer but it is not necessary to do so here. The east terminal of the lateral for many years was at the west line of Section 23, Township 14 North, Range 31 West of the 6th P. M., in Lincoln County, and any waste water from it was spilled into the road ditch and carried south to the southwest corner of Section 23 and thence east to the south branch of Scout Creek. Subsequently the lateral was extended eastward with its east terminus in Section 24. More than 10 years ago appellant...