Clark v. Cambridge & A. Irr. & Imp. Co.

• Decision Date: 18 September 1895
• Citation: 45 Neb. 798,64 N.W. 239
• Parties: CLARK v. CAMBRIDGE & A. IRR. & IMP. CO. ET AL.
• Court: Nebraska Supreme Court

45 Neb. 798

64 N.W. 239

CLARK

v.CAMBRIDGE & A. IRR. & IMP. CO. ET AL.

Supreme Court of Nebraska.

Sept. 18, 1895.

Syllabus by the Court.

1.The courts of this country have not, as a rule, adopted the common-law definition of the term “navigable waters,” which here include those waters only which afford a channel for useful commerce, whether the beds thereof are public or private property, and without regard to the influence of the ocean tide.

2.The courts of this state take notice, without proof, that the Republican river is unnavigable.

3.Except as abrogated or modified by statute, the common-law doctrine with respect to the rights of private riparian proprietors prevails in this country.

4.The right of a riparian proprietor, as such, is property, and, when vested, can be impaired or destroyed only in the interest of the general public, upon full compensation, and in accordance with established law.

5.The provision of the irrigation law of 1889, and the act of 1893, amendatory thereof, abolishing riparian rights in all streams over 20 feet in width, is a clear invasion of private property, and within the prohibitive features of the constitution.

6.A suitor who has, by his laches, made it impossible to prevent the completion or use of public works without great injury to his adversary, or inconvenience to the public, is not entitled to the preventive remedy of injunction, but will be confined to the relief obtainable by ordinary means in a court of law.

Appeal from district court, Furnas county; Welty, Judge.

Action by Enos Clark against the Cambridge & Arapahoe Irrigation & Improvement Company and others for an injunction.Plaintiff had a decree, and defendants appeal.Reversed.F. I. Foss and W. R. Matson, for appellants.

Thos. H. Matters, for appellee.

POST, J.

This is an appeal from a decree of the district court for Furnas county, perpetually restraining the defendant the Cambridge & Arapahoe Irrigation & Improvement Company from diverting the waters of the Republican river, for the purpose of irrigation, by means of a ditch or canal, of which the defendant company is the owner and proprietor.It is in the petition, in substance, alleged that the plaintiff, in the year 1879, in said county, erected a mill for the purpose of grinding grain, and has since the completion thereof, in the year mentioned, continuously used and operated said mill for the purpose aforesaid; that his said mill is supplied with water power by means of a dam constructed by him in the Republican river in the year 1879, on land then and now owned by him; that he has since said date, until the year 1891, had the continued and uninterrupted use of the water of said river, and which is, when not interfered with by the defendant, sufficient to supply all of his needs; but that in the year last named the defendant company commenced the construction of a ditch or artificial water way in said county, which taps the Republican river about 14 miles above his said mill, and now threatens to divert the water from said stream, or so much thereof as to deprive the plaintiff of his water power, and render his mill worthless, etc.The defendant, for answer, after charging that it is an irrigating company duly and legally organized under the laws of this state, alleges that in the month of August, 1891, it, in due and legal form, appropriated the water of the Republican river, to the amount of 300,000 cubic inches, measured under a 4-inch pressure; that it immediately began the construction of an irrigating canal, commencing at the point where said appropriation was made; and that said canal was, within a reasonable time, fully completed, and by means of which the defendant is now engaged in furnishing water, for the purpose of irrigation, to divers persons along the line of its said ditch.It is also alleged that the water flowing in the Republican river, during ordinary seasons, is ample to supply the necessities of the plaintiff, notwithstanding the diversion thereof by the defendant company, and notwithstanding the fact that there have been, since the year 1885, constructed, 27 irrigating canals in this state and in the state of Colorado, all of which have acquired by appropriation a valid right to, and are now actually using, the waters of the Republican river for the purpose of irrigation.There is a further allegation to the effect that the plaintiff, who was aware of said appropriation and contemplated diversion of water, interposed no objection thereto, but, on the contrary, by his silence, encouraged the defendant to undertake and complete the said canal, which was done at great expense, to wit, at the cost of $40,000, wherefore he should not now, for the first time, be heard to assert any rights in the premises superior to those of the defendant, and that his remedy, if any, is by an action for damage, and not by injunction.At this stage of the controversy, Swan Freeman and six others were permitted to intervene for the purpose of asserting their rights in the premises adverse to the plaintiff.In the pleading interposed by them, in addition to the allegations contained in the answer of the defendant company, it is charged that said interveners are the owners of farming lands situated under the aforesaid canal, that the defendant is by law required to supply them with water for the irrigation of the several farms, and that their equities in the premises are superior to those of the plaintiff.The statements of the answer, and also of the interveners' petition, are met by a reply, which may be treated as a general denial.The foregoing statement omits many allegations of the pleadings, some of which are foreign to the real questions involved, and others tender issues of law only.The able arguments with which we have been favored include many questions of vital importance, in view of the prominence given to the subject of irrigation in the recent legislation of this state, but a few of which, for reasons hereafter appearing, call for notice in this opinion.

The first proposition to which we will give attention is that inasmuch as the original surveys meander along the banks of the Republican river, and the adjoining lands were conveyed by patents which do not include the bed of that stream, the title thereof remained in the general government, and subsequently passed to, and became the property of, this state, upon its admission into the Union as such,--in short, that the Republican is, in legal effect, a navigable river, and that plaintiff's dam therein is a public nuisance, and not within the protection of the law.At common law, navigable streams are held to be those in which the tide ebbs and flows.3 Kent, Comm. 413, and note;Black, Pom. Water Rights, § 216.But the doctrine of the common law has not, as a rule, been accepted in this country, and has been entirely repudiated by the courts of the United States, in determining the jurisdiction of congress over lakes and streams, whether situated in two or more states, or within the boundaries of a single state.In those courts, navigability in law is synonymous with navigability in fact, without regard to the influence of the ocean tide, and includes those waters only which afford a channel for useful commerce.SeeU. S. v. The Montello, 20 Wall. 430;Miller v. Mayor, 109 U. S. 385, 3 Sup. Ct. 228.And, although the decisions of the state courts are not altogether harmonious, the rule stated is in accordance with the decided weight of authority.See16 Am. & Eng. Enc.Law, tit. “Navigable Waters,” and the valuable collection of cases therein by Mr. Charles S. Lobingier.The courts of this state will take notice of this fact, which is also established by abundant proof,--that the Republican is not a navigable river, within the foregoing definition.

The appellant's...