Andrews v. Lillian Irrigation District

• Decision Date: 05 November 1903
• Citation: 97 N.W. 336,66 Neb. 461
• Parties: HARVEY B. ANDREWS ET AL., APPELLANTS, v. LILLIAN IRRIGATION DISTRICT, APPELLEE
• Court: Nebraska Supreme Court

97 N.W. 336

66 Neb. 461

HARVEY B. ANDREWS ET AL., APPELLANTS, v. LILLIAN IRRIGATION DISTRICT, APPELLEE

Supreme Court of Nebraska

November 5, 1903

REVERSED AND REMANDED.

OPINION

HOLCOMB, J.

This case is before us on rehearing. The former opinion is reported ante, page 458.

It appears from the petition that the defendant is an irrigation district, organized and acting under the provisions of article 3, chapter 93a, Compiled Statutes (Annotated Statutes, secs. 6822-6886), relating to irrigation and that the plaintiffs are the owners of certain lands lying within its boundaries; that said lands, "are low, wet, swampy lands, lying near the river and totally unfit for irrigation and each and all of said tracts, must have the water naturally standing thereon drained off by means of ditches before the same can be farmed, and said lands and each and every part thereof are so situated that it will be a great and irreparable damage and injury to the same, and to the several owners thereof, for the defendant to run water over across and upon the same or any part thereof, which defendant threatens, intends and is about to do, and will do unless restrained by process of this court"; that the defendant has caused taxes to be levied against the lands for irrigation purposes, which now stand of record as an apparent lien against the same, and as a could on the plaintiffs' title thereto; "that a large majority of the electors of defendant irrigation district are opposed to letting the above described lands or any portion thereof to be set out of said irrigation district defendant, and would and will, if permitted so to do, vote against allowing said lands or any part thereof, being set out of said district and a large amount of the bonds of said district defendant, have been issued and some of them have been sold and are in the hands of innocent purchasers; that each and all of the holders of said bonds are opposed to allowing or permitting said lands or any part thereof to be set out of said district defendant, and none of the holders of said bonds will consent that said lands may be set out of said district and plaintiffs have no adequate remedy at law." The relief asked is that the lands be detached from said district; that the defendant be enjoined from levying taxes against them for irrigation purposes, from collecting those already levied, and from flowing water over said land. A demurrer to the petition was sustained and the suit dismissed. The plaintiffs appeal.

By the former opinion the plaintiffs were denied any relief on the ground that sections 46 to 53 of article 3, chapter 93a Compiled Statutes, 1903 (Annotated Statutes, secs. 6868, 6875), entitled "Water Rights and Irrigation," provide an exclusive method of procedure by which non-irrigable lands may be withdrawn or excluded from a district; that in no event, until a petition has been presented to an irrigation district board and acted upon in the manner provided by the act referred to, can parties complaining be heard in a court of equity for the purpose of having segregated from such irrigation district lands alleged to be non-irrigable. The conclusion we there reached was to the effect that all lands included within the boundaries of the irrigation district, when once established, could be excluded or taken therefrom only by petition to the district board, after a vote upon the question, and with the consent of bond owners, where district irrigation bonds had been issued and disposed of. A further consideration of the question leads to the conclusion that as to non-irrigable lands lying within the boundaries of an irrigation district, the provisions of the sections referred to in the former opinion can have no application. Section 2, article 3, chapter 93a, Compiled Statutes (Annotated Statutes, sec. 6823), provides for the filing of a petition for the organization of an irrigation district with the county board; for notice of a hearing thereon and for such hearing; for changes in the proposed boundaries; that no land shall be included therein that would not, in the opinion of the board, be benefited by irrigation therefrom; that upon a hearing of such petition, the board shall establish and define the boundaries of the proposed district; for notice of an election to determine whether such district shall be organized. Section 3 provides for the holding of such election, the canvass of the votes and the organization of the district by the county board, in case a majority of the votes cast are for its organization. Sections 4 to 8, inclusive, provide generally for the election of an assessor, treasurer and board of directors for such districts, and section 9 defines the general powers and duties of such officers. Section 13 authorizes the issuance of bonds by an irrigation district, and section 15 provides that such bonds and the interest thereon, shall be paid by revenue derived from an annual assessment on the real property of the district, which shall be and remain liable to be assessed for the payment of such bonds.

We now come to the procedure prescribed by said chapter for detaching lands from an organized irrigation district. Section 47 (Annotated Statutes, sec. 6869) provides that the owner or owners in fee of one or more tracts of land, constituting a portion of any such district, may file with the board of directors of the district a petition, praying that such tracts may be excluded from the district. Section 48 provides for the publication of notice of the filing of such petition, and section 49 for the hearing thereon. Sections 50 and 51 are as follows:

"50. The board of directors, if they deem it not for the best interests of the district that the lands mentioned, in the petition, or some portion thereof, should be excluded from said district, shall order that said petition be denied; but if they deem it for the best interest of the district that the lands mentioned, in the petition, or some portion thereof, be excluded from the district, and if no person interested in the...