Drainage Dist. No. I of Lincoln Cnty. v. DiSt, 31075.

• Decision Date: 02 May 1941
• Docket Number: No. 31075.,31075.
• Citation: 139 Neb. 460,298 N.W. 131
• Parties: DRAINAGE DIST. NO. I OF LINCOLN COUNTY v. SUBURBAN IRR. DIST. ET AL.
• Court: Nebraska Supreme Court

139 Neb. 460

298 N.W. 131

DRAINAGE DIST. NO. I OF LINCOLN COUNTY

v.SUBURBAN IRR. DIST. ET AL.

No. 31075.

Supreme Court of Nebraska.

May 2, 1941.

Syllabus by the Court.

1. “If a judge makes an erroneous ruling and afterwards in the trial of the case, with more exhaustive investigation of the question, finds his first ruling is wrong, he should not be bound by it. The principle of res adjudicata does not apply. The first ruling does not become the law of the case so as to bind the court in the further proceedings therein. The court remains the same whether the personnel changes or not.” Perry v. Baker, 61 Neb. 841, 86 N.W. 692. 2. Syllabus 1 in Marvin v. Weider, 31 Neb. 774, 48 N.W. 825, is overruled. Syllabus 1 in Perry v. Baker, 61 Neb. 841, 86 N. W. 692;Tiernan v. Miller & Leith, 69 Neb. 764, 96 N.W. 661, relating thereto; and syllabus 1 in Follmer v. State, 94 Neb. 217, 142 N.W. 908, Ann.Cas.1914D, 151, adhered to and approved.

3. Prior to 1920, the established doctrine in this state was that “The common-law rules as to the rights and duties of riparian owners are in force in every part of the state, except as altered or modified by statutes.” Meng v. Coffee, 67 Neb. 500, 93 N.W. 713, 60 L.R.A. 910, 108 Am.St.Rep. 697.

4. Rights of irrigation in Nebraska have their foundation and source in statutory enactments and constitutional provisions. They exist only as thus created and defined, and are necessarily limited in their scope by the language of their creation.

5. The terms of the applicable statutes in the instant case, as well as constitutional provisions, limit the right of appropriation for irrigation purposes to the waters of the “natural streams” of the state.

6. The drainage ditches constructed and maintained by Drainage District No. 1 of Lincoln county, Nebraska, are established by the evidence to be strictly artificial constructions and creations. The waters which are contained therein and carried thereby have their sources in the low-lying lands they drain, which, in a state of nature, were too wet to farm and over which surface waters were diffused and through which subterranean waters percolated. The waters in such drainage ditches are not subject to legal appropriation under our irrigation laws as waters of “natural streams.”

Appeal from District Court, Lincoln County; J. L. Tewell and I. J. Nisley, Judges.

Suit by Drainage District No. 1 of Lincoln County, Neb., a public corporation, against the Suburban Irrigation District, a corporation, and Henry Geise and others, as the Board of Directors of the Suburban Irrigation District, to enjoin defendant district from placing obstructions in plaintiff's drainage ditches and from proceeding with a condemnation proceeding and for general relief. From an adverse judgment, defendants appeal.

Affirmed.

Hoagland, Carr & Hoagland, of North Platte, for appellants.

Beeler, Crosby & Baskins, of North Platte, for appellee.

Heard before SIMMONS, C. J., EBERLY, PAINE, MESSMORE, and YEAGER, JJ., and LANDIS and MUNDAY, District Judges.

EBERLY, Justice.

The appellee in this action, who will hereinafter be referred to as plaintiff, is Drainage District No. 1 of Lincoln county, Nebraska, and is a public corporation organized under the provisions of our statutes, which now appear as article 4, ch. 31, Comp.St.1929, § 31-401 et seq. In the early twenties it constructed, and has since maintained, certain drainage ditches some thirty miles in length in and through a narrow projection of land that separates the North Platte and South Platte rivers in Lincoln county, Nebraska. The ditches maintained by plaintiff are strictly of artificial construction. They do not have sources in running streams or public waters but drain low-lying lands, in their natural state too wet for farming, of accumulated surface waters diffused thereon and thereover, and of subterranean waters percolating therethrough.

The Suburban Irrigation District, a defendant and appellant, hereinafter referred to as defendant, is a public corporation organized under and by virtue of the irrigation laws of the state of Nebraska, and the members of its board of directors are also named as defendants and appellants.

This is an equity action to determine whether or not the defendant has the lawful right by eminent domain to place obstructions, dams or checks in the drainage ditches of plaintiff, and thereby divert therefrom waters carried therein into the irrigation canal of defendant under an optional diversion permit and appropriation granted by the proper state authorities under date of October 17, 1938.

This is a companion case to Drainage District No. 1 v. Suburban Irrigation District (No. 31001), 297 N.W. 645, in which, by an opinion adopted by this court, the defendant, under the facts contained in the record of that case, was, in effect, enjoined from constructing or maintaining checks or dams in the drainage ditches here in suit, and required to remove from said ditches a check by it constructed, and also enjoined from diverting the waters thereof into its irrigation ditch. Reference is hereby made to the opinion in the case above cited for a description of the terrain involved, the ditches maintained by each of said parties and the mutual intersections thereof, all of which also constitute the locus in quo in the instant proceeding.

The record discloses that the final decree enjoining the defendant in case No. 31001 was entered by the district court for Lincoln county on December 12, 1938. At a later date said judgment was superseded by defendant filing a proper bond as provided by law. On February 19, 1940, defendant presented to the county judge of Lincoln county, a petition and application to appropriate property by eminent domain, the purpose of which was, according to this pleading, “to acquire the right to use the right of way and the drainage canal of Drainage District No. 1 at a point on said section 25 approximately 1,200 feet east of the west line of said section 25, township 14, range 32 in Lincoln county, Nebraska; to maintain a check in the flume now constructed and in use at said point by the Suburban Irrigation District; and to acquire the right of way and use of the drainage canal of Drainage District No. 1 and to maintain the same for a distance of approximately 5,000 feet west of said point 1,200 feet east of the west line of said section 25; to place timbers or other materials in said checks at said point; and to divert the waters from said drainage canal into the irrigation canal of the petitioner. Said checks to be used in said drainage canal between the 1st day of April of each year and the 1st day of December of each year and said checks to be released at other times during said year; to acquire the right of the use of the right of way and canal of Drainage District No. 1 for such purposes for a distance of 5,000 feet west of said checks in sections 25 and 26, township 14, range 32 in Lincoln county, Nebraska, and to keep and maintain said drainage canal for such purposes in a manner that will not interfere with the use of said drainage canal for the purposes for which it was constructed by the said Drainage District No. 1.”

On March 7, 1940, plaintiff instituted the present action in the district court for Lincoln county, Nebraska, by filing therein its petition challenging the right of defendant to the relief demanded in its condemnation proceedings hereinbefore referred to, and praying that the defendant be enjoined from placing obstructions in plaintiff's drainage ditches, and that defendant be enjoined from proceeding with such condemnation proceeding, and for general relief. On the filing of this petition a restraining order was issued by the district court restraining the proceeding in which defendant was engaged, and, in addition, the hearing on the application for temporary injunction was set down for March 22, 1940, at 9 o'clock a. m. Thereafter defendant on March 15, 1940, filed its answer joining issue with plaintiff. On March 22, 1940, pursuant to former order of this district court, the matter of the restraining order theretofore issued and the application for temporary injunction were heard by the district court for Lincoln county, and that court, on March 23, 1940, entered an order, by Honorable I. J. Nisley, district judge presiding, “that the temporary injunction be and the same is hereby dissolved and is no more continued in force and effect and the injunction is hereby dismissed at the costs of the plaintiff.” The transcript in this case, which imports absolute verity, discloses that at the time of this hearing the time for filing plaintiff's reply had not elapsed and the issues on the merits had not been made up; that no temporary injunction had as yet been issued, and that the restraining order of March 7, 1940, and the application for a temporary injunction were all that was then presented, or all that it was possible to present, to the district court for determination. From a consideration of the entire record, it fairly appears that the effect of the order made on March 23, 1940, was to set aside the restraining order and to deny the issuance of the temporary injunction applied for. On March 30, 1940, defendant filed in the district court its motion that the court “enter a final order of dismissal in this action. * * * In the event that the court does not enter the order of dismissal * * * the defendants move the court to require the plaintiff to file their reply instanter * * * and that the court set this case down for final trial and hearing before the court at once,” etc. On the same day the court entered its order, by Honorable I. J. Nisley, district judge, presiding, “that said motion be and the same hereby is overruled. The matter then came on for hearing upon the matter of whether said cause should be set for trial, and after consideration it is ordered that the matter be taken under advisement by the court.” The record further...