Znamanacek v. Jelinek

• Citation: 95 N.W. 28,69 Neb. 110
• Decision Date: 20 May 1903
• Docket Number: 12,855
• Parties: FRANK ZNAMANACEK v. FRANK JELINEK
• Court: Supreme Court of Nebraska

95 N.W. 28

69 Neb. 110

FRANK ZNAMANACEK v. FRANK JELINEK

No. 12,855

Supreme Court of Nebraska

May 20, 1903

ERROR to the district court for Saline county: GEORGE W. STUBBS DISTRICT JUDGE. Affirmed.

AFFIRMED.

Fayette I. Foss, B. V. Kohout and J. A. Wild, for plaintiff in error.

A. R Scott and George H. Hastings, contra.

ALBERT C. BARNES and GLANVILLE, CC., concur.

OPINION

ALBERT, C.

This is an action for damages, alleged to have been sustained by the plaintiff on account of a dam constructed by the defendant across a stream of water, whereby the water was thrown back on the lands of the plaintiff. A trial to the court, without a jury, resulted in a general finding for the defendant and judgment was given accordingly. The plaintiff brings error.

It is conclusively established that in 1882, the defendant was the owner of two quarter sections of land, adjoining each other, one of which we shall call the east, the other, the west quarter. A small stream of water flowed from the west quarter through the east quarter. In that year the defendant constructed a dam across the stream on the east quarter, which threw the water back upon a portion of the west quarter, and, with the exception of a short time when it was destroyed by flood, has ever since maintained the dam at that place. In 1891, he conveyed the west quarter to the plaintiff by warranty deed. At the time of the conveyance, the dam was in existence and its existence and condition were known to the plaintiff. The evidence is sufficient to warrant a finding that the dam was a permanent structure; that the parties so regarded it at the time of the conveyance is clearly shown by the fact that its existence and probable effect on the land was discussed to some extent by them at that time. Whether the dam, since it was first constructed, had always been maintained at the same height that it was at the time the alleged damages were sustained, was one of the issues submitted to the trial court upon conflicting evidence. The trial court by its general finding resolved that question in favor of the defendant. The findings in that regard are amply sustained by the evidence; so it stands as one of the established facts in the case that the dam at no time has been maintained at a greater height than when first constructed, when the conveyance, hereinbefore mentioned, was made to the plaintiff.

The foregoing facts, we think, bring the case within the rule announced in Lampman v. Milks, 21 N.Y. 505, and approved by this court in Fremont, E. & M. V. R. Co. v. Gayton, 67 Neb. 263, 93 N.W. 163, which is as follows:

"Where the owner of two tenements sells one of them, or the owner of an entire estate sells a portion, the purchaser takes the tenement, or portion sold, with all the benefits and burdens which appear, at the time of the sale, to belong to it, as between it and the property which the vendor retains."

The plaintiff contends that the defendant could have no easement in the west quarter while both quarters belonged to him, because one can not have an easement in his own land; that he did not acquire an easement by prescription after he had parted with the land, because this action was brought within less than ten years from the date of the conveyance of the west quarter to the plaintiff, and that there is no evidence of any express or implied grant, consequently, the easement is not established.

It has been held by this court, that a parol grant of an easement will be upheld, where there has been a valid consideration and the grant is certain in its terms, and there has been such a performance on the part of the grantee as would, in the case of a contract for the sale of the fee, take the case out of the statute of frauds. Gilmore v. Armstrong 48 Neb. 92, 66 N.W. 998. While that was what is technically called a suit in equity, yet as equity and law are administered by the same courts in this state, there is no reason why the defendant, in an action of this character, may not interpose as an equitable defense a parol grant of an easement. A parol grant of an easement, like any other contract, may rest in implication, as in Lampman v. Milks, supra, where the owner of land, across which a stream flowed, diverted the stream so as to relieve a portion of the land which had formerly been overflowed, and it was held, that the parties, under such circumstances, are presumed to contract with reference to the condition of the property at the time of the conveyance. In other words, under such circumstances, the law implies a contract, mutually binding on the parties, that the mutual privileges and servitudes of the two tenements, as then obviously existing, shall remain in statu quo. Such agreement can not be said to be...