Hall v. Crawford Co.

Rose, J.

This is an application for an injunction to prevent defendanls from diverting water from the White river above the city of Crawford, Dawes county. The original petition was filed by Le Roy Hall March 2,1897. Below Crawford he had built a dam across the stream and had used the water-power to operate a mill. As a riparian proprietor he asserted rights superior to the claims of defendants. The Crawford Company, defendant, was seeking a franchise to supply the municipality and its inhabitants with water, and for that purpose had constructed a dam across the same, stream above the town. Crawford, though now a city, was then a village. It is one of the defendants. On plaintiff’s petition the village was temporarily enjoined from granting to the Crawford Company a franchise for the purpose stated. For 14 years there ivas no attempt on the part of plaintiff to prosecute his suit to final decree. Tn the meantime he and the Crawford Company were parties to another suit involving the waters of the White river, Crawford Co. v. Hathaway, 67 Neb. 325. In the present case Samnel Swinbank, Peter L. Raben, Emil Raben and Fred Macumber, claiming to be plaintiff’s successors in interest, filed an amended and supplemental petition July 7, 1911, praying that judgment be rendered in their favor for damages in the sum of |12,000; that for their protection the preliminary injunction which had been granted in favor of plaintiff and against the village of Crawford, March 3, 1897, be extended to the city of CraAvford, and that its officers be enjoined from diverting water from the White river. To this amended and supplemental petition defendants filed answers. Upon a trial of the issues joined, the court below dismissed the action. The ■ last named petitioners have appealed.

Did the trial court err in denying the relief sought? Without reference to the evidence, the amended and supplemental petition shows on its face that as early as July 10,1907, the city made use of the waters of the White river for municipal purposes. It still continues to do so. Hall and his successors had knowledge of the facts. They knew of the improvements which the village and the city necessarily made before taking water from the White river for the benefit of the municipality and the inhabitants thereof. Hall’s petition alleged that the Crawford Company had diverted ' water from the river above the village before August 7, 1895. The village and the city had power to condemn property rights necessary to a public water system and to grant to a corporation a franchise to supply the city and its inhabitants with water. Comp. St. 1895, ch. 14, art. I, sec. 69, subd. 15. For many years Hall and his successors in interest, with knowledge of the facts, but without any effort to adjudicate in this suit the rights they now assert, permitted the municipality tc expend public funds in diverting and in distributing water from the White river for public purposes. The dismissal of the case, therefore, was proper, under the principle of law that an owner of property, who knowingly permits a corporation, having the power of condemnation for a public purpose, to use or damage such property therefor, may be limited to his remedy for damages.

Affirmed.

Barnes, Fawcett and Hamer, JJ., not sitting.