DiSt v. Tri-State Land Co.

• Decision Date: 18 October 1912
• Docket Number: No. 17,522.,17,522.
• Citation: 138 N.W. 171,92 Neb. 121
• Parties: ENTERPRISE IRR. DIST. v. TRI-STATE LAND CO. ET AL.
• Court: Nebraska Supreme Court

92 Neb. 121

138 N.W. 171

ENTERPRISE IRR. DIST.

v.TRI-STATE LAND CO. ET AL.

No. 17,522.

Supreme Court of Nebraska.

Oct. 18, 1912.

Syllabus by the Court.

Before the 1911 amendment (Laws 1911, c. 153, § 17) to section 18, c. 69, Laws 1895, and under the Irrigation Act of 1889 (chapter 68, Laws 1889), one who has constructed a canal for the purpose of carrying water for hire to be used upon the lands of others, and is ready and willing to furnish the water to such landowners as will take it, has made the only application of water to a beneficial use that he can make, and his right to an appropriation continues as a developing right until all lands along the canal for which the water was originally appropriated use the same, provided, formerly, that the water be applied to the land within a reasonable time, and, now, within the time limited by statute.

The constitutionality of the Irrigation Act of 1895 and the provisions thereof creating the state board of irrigation and conferring on the board the right to determine priorities, reaffirmed, following Crawford Co. v. Hathaway, 60 Neb. 754, 84 N. W. 271;Id., 61 Neb. 317, 85 N. W. 303;Id., 67 Neb. 325, 93 N. W. 781, 60 L. R. A. 889, 108 Am. St. Rep. 647;McCook Irrigation & Water Power Co. v. Crews, 70 Neb. 115, 102 N. W. 249.

Where a statute authorizes a proceeding under the police powers of the state affecting property rights and does not expressly provide for notice to be given to the property owner, the right to notice is implied and where a proper notice has been given, under a procedure authorized by the Legislature, and the party interested has appeared, he has not been deprived of any of his rights without due process of law.

The Legislature has power to delegate the duty of formulating rules of procedure before the state board of irrigation, and the fact that the method of procedure is not embodied in the statute does not render due process lacking in the proceedings of the board.

In determining priorities of appropriation under the act of 1895, the transcript of posted and recorded notices transmitted by the county clerk to the state board of irrigation constitute the “claims” for adjudication.

The limitation of 30 days within which to issue a certificate by the board of irrigation, under section 21 of the 1895 act, is merely directory. Such certificate does not constitute the adjudication, but is merely evidence thereof.

In determining priorities under sections 15-27 of the act of 1895, the board of irrigation, although it might recognize and determine existing conditions and limitations, was without power to impose new.

Under the facts set forth in the opinion, held, that the right of the Tri-State Land Company to an appropriation, as successor in interest of the Farmers' Canal Company and Roberts Walker, was not lost by lack of diligence, nonuser, or abandonment.

The posting and recording of notices of “claims” to the waters of the state, under the Laws of 1889, c. 68, held to be a public record, of which all parties interested were bound to take notice, and with knowledge of which they were chargeable.

After it had been adjudged that Roberts Walker had a valid appropriation to 1,142 6/7 cubic feet of water per second of time from the North Platte river, with priority dating from September 16, 1887, the Tri-State Land Company purchased all his rights in the appropriation and canal. It immediately began the expenditure of large sums of money in the enlargement and completion of the canal, and carried the same forward with diligence from year to year until it had expended nearly $2,000,000. In 1906 it applied to and received leave from the state board of irrigation to construct a needle dam in the river for the purpose of conducting water into its head gate, and thereafter erected the same at large expense. There being insufficient water in the river during the months of July, August, and September to supply the amount claimed by the Tri-State Land Company and also to supply the amount to which the plaintiffs are entitled, plaintiffs began this action in 1909 for the purpose of adjudicating priorities of the respective water users in the river, and procuring a decree that their rights are superior to those of the Tri-State Land Company except as to about 28 second feet, and for an injunction to restrain the use or diversion of more than that quantity of water by the defendants. Held, that since the plaintiffs stood by for more than four years with full notice and knowledge of the “claims” of the defendants to an appropriation of 1,142 6/7 second feet, and permitted defendants to expend nearly $2,000,000 without objection or without notice of their claims to a prior appropriation, and without beginning an action to restrain the diversion of the water in excess of the amount which they concede defendants are entitled to, they are estopped, after the substantial completion of the canal and works, to maintain this action.

Appeal from District Court, Scotts Bluff County; Hobart, Judge.

Action by the Enterprise Irrigation District against the Tri-State Land Company and others. From the judgment, the Tri-State Land Company and others appeal, and defendant the Mitchell Irrigation District files a cross-appeal. Reversed, and cause dismissed.

Hamer, J., dissenting in part.

C. C. Flansburg, of Lincoln, and Wright & Duffie, of Scotts Bluff, for appellant.

E. C. Calkins, of Kearney, amicus curiæ.

Thomas M. Morrow, of Denver, Colo., and Wm. Morrow, of Scotts Bluff, for appellee Enterprise Irrigation District.

Morrow & Morrow, of Scotts Bluff, for appellee Mitchell Irrigation Dist.

H. N. Haynes, of Greeley, Colo., W. W. White, of Gering, G. J. Hunt, of Bridgeport, and Wilcox & Halligan, of North Platte, for other appellees.

LETTON, J.

This action was begun on August 23, 1909, by the Enterprise Irrigation District claiming an appropriation of water from the North Platte river, under a claim made by the Enterprise Ditch Company in March, 1899, to whose rights the plaintiff has succeeded by purchase. A large number of other persons and corporations claiming appropriations of water from the North Platte river in Scotts Bluff and Cheyenne counties are made parties defendant. When the issues were finally made up, it appeared that plaintiff and each of the defendants except the Tri-State Land Company and the Farmers' Mutual Canal Company were interested in having the prayer of the petition granted, and that practically the same relief is sought by each of them against two defendants named. There is one exception to this general statement which will be hereafter noted. Throughout the opinion, therefore, for convenience, the two latter named companies will be designated as defendants and all the other parties as plaintiffs. The state board of irrigation and the secretary of the state board will be hereafter termed the state board or the secretary, as the case may be.

The pleadings are exceedingly lengthy and involved. Therefore no attempt will be made to set them out in detail. The cause was tried upon the pleadings and upon an agreed stipulation of facts, so that the questions presented are practically questions of law.

The dispute may be summarized thus: The defendants claim an appropriation of water to the extent of 1,142 6/7 cubic feet prior in point of time to an appropriation by any of the plaintiffs, and an adjudication in their favor by the state board of irrigation to this extent. The plaintiffs' claim is that an appropriation to the extent of more than 28 feet never actually vested in the Farmers' Canal Company or its successors, and that by the actual beneficial use of water by the plaintiffs before the water had been put to beneficial use by the defendants, and before the canals of defendants had been constructed, plaintiffs acquired a prior right to all but 28 second feet of the water claimed by defendants. They further contend that, if the Farmers' Canal Company ever acquired an appropriation for the full amount, it had lost the same by nonuser. The defendants assert the validity of their appropriation, that it is prior in point of time to that of any of the plaintiffs, and deny its loss by nonuser or abandonment. They also plead an estoppel by reason of plaintiffs standing by with knowledge of their claim for years, and allowing them to expend vast sums of money in the carrying out of their enterprise without notice of any hostile or adverse claim of superior right until after the works were practically completed. At the close of the trial, the court found for each and all of the plaintiffs and cross-petitioners except the Mitchell Irrigation District, and rendered a decree which ascertained and adjudged the respective appropriations to which the parties were entitled, and established their respective priorities, without reference to the action of the state board in 1896 and 1897. The Tri-State Company and the Farmers' Mutual Canal Company were adjudged to have an appropriation of 28.57 cubic feet per second only, instead of 1,142 6/7 second feet as claimed, with priority dating from September 16, 1887. As to any excess over this amount if an appropriation was ever acquired, it had become lost by failure to apply the same to a beneficial use for a continuous period of more than 10 years. As to the Mitchell Irrigation District, the court found that because its canal heads in the state of Wyoming, and the water is diverted into it in that state, the court had no jurisdiction of the subject-matter of its cross-petition, and the same was dismissed.

Much abbreviated, but preserving those facts we consider material to the controversy, the stipulation of facts upon which the case was submitted shows: That the lands are in the valley of the North Platte river, and that the amount of water flowing in the bed varies greatly at different times in the year. During April, May, and June the amount usually has been sufficient to supply all water necessary for...