Gilmore v. Armstrong

Iuvine, C. The appellant brought this action against the appellee to restrain the latter from maintaining a certain dam [94] and ditch, which he alleged diverted a water-course which would otherwise drain plaintiff’s land and pass across the land of the defendant, in such manner as to throw the water back upon plaintiff’s land to its damage. The defendant, by answer’, pleaded that the dam and ditch had been constructed under an agreement between the parties to that effect, and had been their joint work; that plaintiff had wrongfully obstructed the ditch, and defendant therefore prayed for an injunction restraining the plaintiff from further obstructing it. The district court found for the defendant, denied the plaintiff the relief he sought, and also denied relief to the defendant, on the ground that there was no evidence of an intention on the part of piaintiff to further obstruct the ditch. The plaintiff appeals, and the defendant also, in his brief, asks that the decree be modified so as to grant him the relief prayed in his answer. While the evidence on some points is in conflict, there is sufficient competent evidence tending to show the following state of facts: The plaintiff is the owner of the northwest quarter of a certain section. The defendant is the owner of the west half of the northeast quarter, and the plaintiff is the owner of the northeast quarter of the northeast quarter. The defendant’s land, therefore, lies between two tracts belonging to the plaintiff. A draw, which for the purposes of this case we assume to be a natural water-course, takes its láse some place near plaintiff’s south line, and crosses to defendant’s land about 900 feet north of the center of the section. The northern part of the section is bottom land adjoining the Little Blue river. The water collected in this draw formerly passed across defendant’s land and poured out upon the bottom land in the northeast quarter of the noi’theast quarter belonging to the plaintiff; and was a serious inconvenience to both parties. By parol agreement between the parties a dam was constructed at the point where the draw crossed the line between the northeast and northwest quarters; and a ditch was constructed [95] from the western end of the dam almost north so as to discharge the water at a point near this line, instead of npon the northeast quarter of the northeast quarter of the section. It seems that this has the effect of overflowing in wet seasons a portion of Gilmore’s land in the northeast part of the northwest quarter, while it relieves the northeast quarter of the northeast quarter and Armstrong’s farm of an excess of water. It also appears that it was the intention of the parties to construct the ditch along the line between the two quarter sections; and .that it was staked off by both parties; and the work, both upon the dam and the ditch, was contributed to by both parties, but was chiefly done by the defendant. A survey, however, disclosed that their intention of keeping the ditch upon the division line was not carried out, but that the greater part of its course was by mistake laid upon the land of Gilmore. Assuming these facts as established by the findings of the court, notwithstanding the conflicting evidence, the question presented is whether or not the construction of the dam and ditch under the parol agreement referred to is a defense to the action; because, in the absence of such agreement, it is clear that the plaintiff would be entitled to relief against such a diversion of the waters. (Davis v. Londgreen, 8 Neb., 48; Fremont, E. & M. V. R. Co. v. Marley, 25 Neb., 138; Jacobson v. Van Boening, 48 Neb., 80, and cases there cited.) The appellant contends that the agreement referred to, if proved, would establish an easement, and therefore must be proved either by grant, which in this state means by written deed, or by prescription, neither of which is pleaded or proved; and further, that if it be treated as a license, which may be established by parol, it was one which was revocable at the will of the licensor, and had been revoked. There are certain cases which support this contention, but they lose sight of two principles. The first is that a license upon sufficient consideration, carried into execution by the incurring of expense by the [96] licensee, is usually not revocable. Tbe other is that in a court of equity part performance is frequently sufficient to take the case out of the statute of frauds. These principles have been frequently recognized in similar cases; and we refer especially to the elaborate and carefully considered opinion of Justice Hanly in Wynn v. Garland, 19 Ark., 23. Other cases recognizing the principle are Snowden v. Wilas, 19 Ind., 10; Stephens v. Benson, 19 Ind., 367; Wiseman v. Lucksinger, 84 N. Y., 31; Lacy v. Arnett, 33 Pa. St., 169; Cronkhite v. Cronkhite, 94 N. Y., 323; Johnson v. Skillman, 29 Minn., 95. As said by Judge Dillon in a similar case (Beatty v. Gregory, 17 Ia., 109), in meeting a similar argument as to the power to revoke such license, “It would be a shame and reproach to the law if this could be done.” The cases we have cited, while differing as to the requirements in the way of part performance, which are necessary to take the case out of the statute of frauds, all recognize the doctrine that a parol grant of an easement is, in equity, out of the statute, when the circumstances are such that a contract for the conveyance of the fee would be taken out of it. In this case the evidence tends to show that the dam and ditch were constructed principally at defendant’s expense, along defined and ascertained lines fixed by the parties, chiefly on plaintiff’s land, but partly on defendant’s and with the ]3urpose of benefiting both parties. They had been maintained for about seven years before this suit was brought, and we think, under the circumstances, the contract is clearly one which a court of equity will enforce. Much more will it refuse affirmative relief to the party who seeks to disregard it. As to the cross-appeal, we think the action of the district court was justified by the evidence. The finding is such that the decree refusing defendant an injunction would be no bar to an action for a similar purpose if plaintiff should in the future threaten his rights.. The decree is, therefore, in all things AFFIRMED.