Smith v. Garbe

• Decision Date: 10 February 1910
• Docket Number: 15,783
• Citation: 124 N.W. 921,86 Neb. 91
• Parties: WILLIAM SMITH ET AL., APPELLEES, v. ALBERT F. GARBE, APPELLANT
• Court: Nebraska Supreme Court

124 N.W. 921

86 Neb. 91

WILLIAM SMITH ET AL., APPELLEES, v. ALBERT F. GARBE, APPELLANT

No. 15,783

Supreme Court of Nebraska

February 10, 1910

APPEAL from the district court for Fillmore county: LESLIE G. HURD JUDGE. Affirmed.

AFFIRMED.

Charles O. Whedon and H. P. Wilson, for appellant.

Charles H. Sloan, Frank W. Sloan and J. J. Burke, contra.

FAWCETT J. REESE, C. J., not sitting.

OPINION

FAWCETT, J.

A number of questions have been discussed in this case which we do not deem it necessary to consider. Various assignments of error on the part of the trial court in the admission of evidence cannot be considered for two reasons: First, no motion for new trial was filed in the court below; second, even if there had been such a motion, this is an equity case and was tried to the court without the aid of a jury. In such cases the rule is well settled in this state that errors of the court in admitting testimony will not be considered. This court will presume that the trial court only considered the competent and material evidence received.

The main question involved in the case is the right of defendant to maintain a certain ditch and two dams which the undisputed evidence shows were dug and constructed within the dead water zone of the plaintiffs' milldam. The rights of the parties with regard to this question we think were fully settled by this court in Culver v. Garbe, 27 Neb. 312, 43 N.W. 237. All of the rights of the parties to this suit were derived from the parties in that case, and depend upon the same lease, and the same stipulation and decree in proceedings in ad quod damnum considered, construed and decided in the said case, to which we refer for a statement of the main contention of the parties and for a copy of the lease, and stipulation and proceedings in ad quod damnum hereinbefore alluded to. In that case plaintiffs sought to enjoin defendant therein from digging the ditch and constructing the two dams referred to. The Culvers also claimed the right to cut the grass upon the lands described in the lease, which were not actually submerged. The district court found in favor of the defendant, and decreed that defendant was entitled to cut the grass upon the lands in controversy, not submerged, and to dig the ditch and construct the dams referred to, and enjoined plaintiffs from in any manner interfering with defendant in digging and constructing said ditch and dams, and from going upon the land to cut grass. On appeal by plaintiffs to this court, the judgment of the district court, so far as the use of the farm or pasture land was concerned, was affirmed. As to the ditch and dams referred to we held: "A careful examination of the evidence and plat of the river at the point where it is proposed to construct the ditch and dams, satisfies us that the proposed improvement cannot be made without endangering plaintiffs' property. This being true, the law will afford relief and protection. The decree of the district court must therefore be modified so as to protect the rights of plaintiffs to the exclusive use of the river and the water therein in defendant's land, and defendant will be enjoined from constructing the dams and ditch referred to. As thus modified, the decree will be affirmed. Judgment accordingly."

It seems that when the mandate of this court was sent down in that case it was never entered of record in the district court, and it is now contended by defendant that the judgment of the district court thereby remained in full force and effect and is res adjudicata, and that plaintiffs upon the trial of this case, could not offer in evidence the said mandate. This contention is without merit. The judgment of this court did not reverse the judgment of the court below and remand the cause for further proceedings. The judgment entered here became final and binding upon the parties regardless of whether the mandate was ever entered of record in the district court or not. This being true, then it clearly appears that by the judgment of this court it was finally decided that defendant had no right to and should not dig the ditch and construct the dams in controversy. In the syllabus we held that "appellant had a vested right in the stream and water within the land covered by the lease, and that appellee had no right or authority to interfere therewith, and would be enjoined from changing the course of the stream, constructing the dam, or diminishing the appellant's reservoir or supply of water." Contention is made that the lease and stipulation referred to only gave plaintiffs the right of flowage of the land in controversy. This contention cannot be sustained. The language of the lease is: "To have and to hold the same to her and her heirs, executors, and administrators and assigns, for the purpose of running, maintaining, and operating a mill and for mill purposes, the said Jerusha A. Ellis and personal representatives and assigns to have all the rights, privileges, and use and benefit of said land as described in this lease for the purpose aforesaid, as though she were the owner thereof in fee simple. Except that said lessee nor his heirs or personal representatives or assigns are not to cut the timber, if any there be growing on said land so leased, but said lessors or their assigns are to have the right to this timber growing on said land, and provided further the said lessors and their assigns shall forever have free access to the southwest side of said river and dam for farming and stock purposes. This lease is an absolute lease for all the lands described in said lease for the period of time therein named and for all purposes save the exceptions expressly named. The rights of said Jerusha A. Ellis and her assigns under this lease are as to all of said leased lands the same as if said lands had been condemned on proceedings in ad quod damnum. And the said Jerusha A. Ellis and her representatives and assigns are to pay all taxes hereafter assessed or levied upon the lands described in this lease." The duration of the lease was to be "for so long and for such a period of time as the said Jerusha A. Ellis, her heirs, executors, administrators, or assigns shall keep up and maintain a mill on or near the present site on section one", etc. It is clear that this gave more than the right of flowage. It gave to Mrs. Ellis and her representatives and assigns the right to use said land "for the purpose of running, maintaining, and operating a mill and for mill purposes." This would include not only the right of flowage, but also the right to use the land (94 10-100 acres) in any manner necessary for the proper protection and operation of the mill and for mill purposes, including the right to extend her dam, if need be, onto the lands so leased to her. In the face of the judgment of this court, defendant, or those under whom he claims, proceeded to dig the ditch and construct the dams in controversy, and in addition thereto place other obstructions upon the lands so leased to plaintiff's grantors, and refuses to permit plaintiffs to go upon the leased lands for the purpose of removing such obstructions and filling the ditch and removing the dams referred to. This suit was brought to enjoin such interference. The district court found for the plaintiffs, and entered a decree giving them the right to the free use of the lands obtained under the aforesaid lease, and to take all necessary steps to protect their mill and dam, reservoir...