Regouby v. Dawson County Irrigation Company

• Court: Nebraska Supreme Court
• Writing for the Court: CHASE, District Judge.
• Citation: Regouby v. Dawson County Irrigation Company, 254 N.W. 389, 126 Neb. 711 (Neb. 1934)
• Decision Date: 13 April 1934
• Docket Number: 28785
• Parties: EMILE REGOUBY, APPELLANT, v. DAWSON COUNTY IRRIGATION COMPANY, APPELLEE

254 N.W. 389

126 Neb. 711

EMILE REGOUBY, APPELLANT, v. DAWSON COUNTY IRRIGATION COMPANY, APPELLEE

No. 28785

Supreme Court of Nebraska

April 13, 1934

APPEAL from the district court for Dawson county: ISAAC J. NISLEY JUDGE. Affirmed in part, and reversed in part, and remanded with directions.

AFFIRMED IN PART, AND REVERSED IN PART.

Syllabus by the Court.

1. The owner of land, who knowingly permits an irrigation company to enter thereon and expend large sums of money in the excavation and construction of an irrigation canal across his premises, cannot, thereafter, resort to a court of equity for an injunction to prevent the irrigation company from using such canal for irrigation purposes, but must seek his remedy in damages therefor.

2. Where land of a private person is appropriated for a public use, such person is entitled to be compensated for the land actually appropriated; in addition thereto, he may recover any special damages he has suffered by way of diminution in value of the remainder of his land, less any special benefits received. General benefits, however, are not deductible.

3. Where an irrigation company excavates its canal through the land of a private individual, without resorting to condemnation proceedings provided by statute, and carries on its system of irrigation for over two years without paying the owner any damages occasioned by the work, in an action for damages brought by the owner against such company, if it then appears that the owner has suffered additional damage because of the negligent construction of the canal, this element of damage can also be recovered in the action.

Appeal from District Court, Dawson County; Nisley, Judge.

Action by Emile Regouby against the Dawson County Irrigation Company. From an adverse judgment, plaintiff appeals.

Affirmed in part and reversed in part, and cause remanded, with instructions.

Frank M. Johnson and Craft, Edgerton & Fraizer, for appellant.

Cook & Cook, contra.

Heard before Goss, C. J., ROSE and PAINE, JJ., and CHASE and ELDRED, District Judges.

OPINION

CHASE, District Judge.

This is a suit in equity to enjoin an alleged continuing trespass upon real estate, and to recover damages resulting therefrom. From the decree of the trial court awarding plaintiff damages for the value of the land actually appropriated, and denying special damages and injunctive relief, the plaintiff has appealed.

This action was originally commenced on January 22, 1930, as an action at law in which the plaintiff sought to recover damages for the value of lands actually appropriated by the defendant for an irrigation canal; special damages to the remainder of the tract by way of diminution in value, and for injury to and destruction of crops and grass upon the land, alleged to have resulted from the damming up of surface waters by the canal embankment. On February 17, 1932, plaintiff filed an amended and supplemental petition, in which he appears to have abandoned his original theory. In the latter petition he invokes the powers of a court of equity for an injunction restraining the defendant from carrying on its system of irrigation through his premises, on the ground that the same amounts to a continuing trespass, and prays for general damages resulting from such trespass. In the defendant's answer to plaintiff's supplemental petition it seeks to justify its action by the claim that it is a duly incorporated and existing common carrier of water for irrigation purposes; that on March 25, 1896, the Farmers & Merchants Irrigation Company acquired, by warranty deed, a right of way for irrigation purposes across the land in question from one Alexander Regouby, father of plaintiff, and that through mesne conveyances this defendant became the owner of said right of way from the original grantee; that, in the latter part of the year 1926, the defendant constructed the irrigation canal in question; that, previous to the construction thereof, the plaintiff and defendant entered into an oral agreement whereby the right to construct the canal was granted to the defendant upon the defendant's promise to make certain improvements upon the plaintiff's land; that, in furtherance of this agreement, the canal was constructed and the improvements made, and that such agreement, in law, amounts to an irrevocable license to maintain the canal across plaintiff's premises. The defendant denied any damage to crops resulting from the irrigation project. The plaintiff, in his reply, asserted that the right of way granted to the Farmers & Merchants Irrigation Company by his father, who was plaintiff's grantor, terminated by the permanent abandonment of the same in the year 1901; that for more than 20 years prior to the construction of the defendant's canal in 1926 the right of way of the original canal had been plowed over, continually farmed, and was wholly filled up and almost entirely obliterated.

It appears from the record that the plaintiff is the owner of the land in question, being 80 acres, rectangular in shape, which is traversed lengthwise by the defendant's irrigation canal in an easterly and westerly direction, somewhere near the middle, making the canal on plaintiff's land approximately 100 rods in length; that no attempt was made by the defendant to exercise any statutory right of eminent domain over the premises; that in the fall of 1926 the defendant began the construction of its canal, coming from the west and moving eastward. When the work approached plaintiff's premises, the defendant, through its officers, notified the plaintiff that they proposed to excavate across his land. The plaintiff, upon receipt of this notice, protested against the proposal, stating that he did not want an irrigation ditch dug through his premises. He was then notified by the officers of the defendant that they were going on through his premises with the canal and would proceed to carry out their design unless stopped by the courts. The plaintiff did not invoke the powers of the court to prevent the work, and the canal was completed through plaintiff's premises in the latter part of 1926. In 1927 irrigation waters were turned therein.

It appears that the land actually appropriated for the canal and its embankments consumed a strip about 100 rods long and 77 feet wide. It appears further that the portion of plaintiff's land lying to the north of the canal is mostly rolling, and that prior to the construction thereof the surface waters that fell thereon were wont by nature to flow to the south through natural depressions, spreading out upon the level land, and finally disappearing by flux, percolation, and evaporation; that defendant's canal was constructed through the premises generally about the point where these undulations terminated at the edge of the plain; that by the throwing up of the embankments on the north side of the canal some of the surface waters from the north portion of plaintiff's land were dammed up, flooded back, submerging his crops, covering both them and the land with deposits of silt and drift. It further appears that in 1930 the water broke through the embankment of the canal scouring out a hold of considerable size and depth on plaintiff's premises near the western boundary thereof. Again in 1931 the embankment gave way, discharging the waters with such violence as to wash a gulch through plaintiff's land, passing therefrom, down to his farm home and filling the cellar of his residence with water.

The evidence shows without serious dispute that the Farmers & Merchants Irrigation Company in 1896 acquired a right of way by deed across these premises whereby there was conveyed a strip of land 75 feet wide. This conveyance contained the following provision: "Provided that in case said company * * * shall permanently abandon any survey or ditch made or to be made through said land, the same shall revert to and become revested in the said grantors herein, their heirs and assigns."

The defendant claims to have been the grantee of the right of way described in the original deed through mesne conveyances. The evidence also shows, practically without dispute, that in 1901 the Farmers & Merchants Irrigation company wholly abandoned its irrigation project through the land in question and never thereafter asserted it; that neither the original grantee nor any subsequent grantee through it attempted to claim a right of way through plaintiff's...