Crawford Company v. Hathaway

• Decision Date: 04 February 1903
• Docket Number: 10,087
• Citation: 93 N.W. 781,67 Neb. 325
• Parties: CRAWFORD COMPANY, APPELLANT, v. HATHAWAY ET AL. APPELLEES
• Court: Nebraska Supreme Court

93 N.W. 781

67 Neb. 325

CRAWFORD COMPANY, APPELLANT, v. HATHAWAY ET AL. APPELLEES

No. 10,087

Supreme Court of Nebraska

February 4, 1903

REHEARING of the case reported in 60 Neb. 754, and 61 Neb 317. Appeal from the district court for Dawes county. The appellant brought an action in the district court for Dawes county against Leroy Hall and others to adjudicate certain rights of the parties and to enjoin Hall, who was charged with making threats to tear down a dam erected by the appellant in White river, in Dawes county, by which nearly all the water in the river was diverted from the channel and caused to flow through plaintiff's ditch. Crawford is a village situated in Dawes county, in the arid district of Nebraska, on the banks of White river. The appellant was created for the purpose of constructing a canal which should furnish water to the village of Crawford. It was contended on the part of the appellant that the sewerage from Fort Robinson--situated above the village--ran into White river destroying its purity and rendering it unfit for use. The appellee Leroy Hall owned a mill on White river below the village of Crawford; and as a riparian proprietor, claimed the right to the water by prescription. The appellant contended that no prescriptive right could arise from simply receiving water. Heard below before KINKAID, J. Judgment for defendants below. Reversed.

REVERSED AND REMANDED.

Francis G. Hamer, Thomas F. Hamer, Allen G. Fisher and Justin E. Porter, for appellant.

Samuel Maxwell, Albert W. Crites and William H. Fanning, contra.

John S. Kirkpatrick and J. W. Deweese, amici curiae.

HOLCOMB J. SEDGWICK, J. concurring in the conclusions.

OPINION

HOLCOMB, J.

An opinion prepared in this cause by the then chief justice, with one in its nature supplementary thereto, have heretofore been handed down by the court. Crawford Co. v. Hathaway, 60 Neb. 754, 84 N.W. 271, and 61 Neb. 317. The importance of the questions involved in a decision of the controversy, vitally affecting, as they do, the material interests of the state, and especially that portion of it where irrigation is necessary to successful agriculture, has induced us to grant a further hearing, and again to examine and consider the principal controverted points arising in the case. A full statement of the nature of the litigation is found in the opinion first filed, and we need not here restate it. Briefly, the appellant, who was plaintiff below, began an action, equitable in character, to have adjudicated the rights of different persons made parties to the action to the use of the water flowing in a stream called White river, and to enjoin the defendant Hall from a threatened interference with plaintiff's head-gate and works connected with an irrigating canal being constructed by it. The plaintiff claimed the right to divert the waters of the stream mentioned for irrigation purposes, and to supply the town of Crawford, situated near its proposed canal, with water for municipal purposes. Defendant Hall, owning and operating a mill adjacent to the stream, which had been utilized for power purposes, denies plaintiff's alleged right of appropriation and claims a right to the continued use of the water ordinarily flowing in the stream as a riparian proprietor. Numerous other persons, claiming some right to the use of the water as riparian owners or by appropriation, were also made defendants, with a view of having adjudicated the rights of all the parties to the litigation. The trial court refused to take jurisdiction and try the cause on its merits, for the reason that the water rights of the respective parties had not first been determined by the state board of irrigation, under the provisions of the irrigation act of 1895. On defendant Hall's application on a cross-petition an injunction was granted against plaintiff restraining it from diverting the water of the stream into its irrigation canal, and the temporary injunction granted in its favor and against Hall was dissolved. From these several orders the plaintiff appeals.

The argument in this court has taken an exceedingly broad range. Narrowed to its simplest terms, the matters in dispute relate to conflicting rights and interests as between riparian owners, and those claiming as appropriators of the waters in the streams of the state for irrigation and other beneficial purposes. Incidental to the main question thus stated, there is involved the constitutionality of the irrigation act of 1895, creating and providing for a state board of irrigation, defining its duties, powers and authority, and especially the portion of the act which empowers such board to determine and adjust the amount and priority of right to the use of water by appropriation for irrigation purposes. There is also presented for consideration the correctness of the ruling of the trial court in dismissing the action begun by plaintiff without a hearing and judgment on its merits. Appreciating the fact that great interests are affected, and the far-reaching consequences of a decision regarding the matters in controversy when finally determined, more than the usual time has been taken in order that such full consideration might be given the case as the importance of the question presented seems to demand. In the former opinions we decided, in substance, that the plaintiff could not rely upon a statute for the purpose of enforcing its alleged right as appropriator and at the same time urge the invalidity of a material portion thereof on the ground of its alleged unconstitutionality, it being obvious that the invalid portion, if found invalid, formed an inducement to the passage of the entire act upon which its rights must rest if sustained; and that the act of the legislature of February 19, 1877, did not abrogate the common-law rights of riparian owners as they theretofore existed in this state. It is also held that sections 47 and 48, article 2, chapter 93a, Compiled Statutes, 1897, constituted no acceptance of any supposed grant to the state by the federal government of the waters on the public domain. While some other questions of a minor character were determined, those just referred to are the only ones having a material bearing on the principal propositions we shall consider in the further examination of the case.

Much of the several briefs of counsel for plaintiff, whose rights are to be decided by the law relating to the right of appropriation of water for irrigation, is devoted to an argument in support of the contention that the doctrine of the rights of riparian owners as known and enforced at common law is inapplicable to, and has never legally become a part of, the laws of this state, and is not in force therein. It is insisted that the waters of the state, by virtue of the laws and ordinances in force when it was admitted to the Union, are publici juris, always have been, and may lawfully be diverted from any stream where naturally flowing, appropriated by non-riparian owners, and employed for any beneficial use; that the law of prior appropriation of water as defined by the civil law is in force in this state, and not the common-law rule of riparian proprietorship. The argument is constructed on the theory that the civil-law doctrine of appropriation of water in natural streams as belonging to the public became a part of the laws of the territory and state by reason of the Louisiana territory purchase from France, and that nothing since the acquisition of that territory has transpired which has had the effect of displacing the law as it then existed. It is said that while the enabling act for the admission of the state provided that the people inhabiting the territory forever disclaimed all right and title to the unappropriated public lands lying within the territory, and that the same should be and remain at the sole and entire disposition of the United States, yet the provision contained in the first state constitution declaring that the people of the state in their right of sovereignty are to possess the ultimate property in and to all lands within the jurisdiction of the state, and all lands, the title to which shall fail from a defect of heirs shall revert or escheat to the people, preserved to them and to the state sovereignty and jurisdiction over the waters of the streams flowing therein, and left in force the doctrine of appropriation as theretofore existing. The scope and effect of the provisions referred to, as we view the subject, accorded to the government the primary right of disposal of the public lands, the state maintaining its sovereignty in the exercise of the powers of eminent domain and right to property resulting from escheats and forfeitures.

Without conceding or controverting the proposition of the civil law of appropriation ever being in force in the territory now comprising the state, we feel altogether clear that, in the organization of its government, the common-law rule of riparian proprietorship was established as a part of its laws. By the argument along the lines indicated, we are asked to overrule the many prior decisions of this court on the subject of water and water rights as they relate to riparian proprietors, and declare the law to be as it is applied in the arid states immediately west of us, where the waters of all the streams flowing in and through the states are held to belong to the state, in trust for the people, and subject to appropriation by any person or corporation for a beneficial purpose; the act of appropriating the water being the test of the right thereto and the use thereof, rather than the ownership of the banks between which the stream flows. The argument is not convincing, nor will it justify us in departing from sound and well-recognized principles of...