Enterprise Irr. Dist. v. Willis

• Decision Date: 24 February 1939
• Docket Number: 30438.
• Citation: 284 N.W. 326,135 Neb. 827
• Parties: ENTERPRISE IRR. DIST. v. WILLIS.
• Court: Nebraska Supreme Court

284 N.W. 326

135 Neb. 827

ENTERPRISE IRR. DIST. v. WILLIS.

No. 30438.

Supreme Court of Nebraska.

February 24, 1939

Syllabus by the Court.

1. An appropriator of the waters of a stream for irrigation purposes, who has had his appropriation properly adjudicated under the laws of the state, secures a vested right which is entitled to all the protection of a property right.

2. An appropriation for irrigation purposes in this state, made prior to 1895, was not limited as to quantity save and except that it must be for some useful and beneficial purpose and within the limits of the capacity of the diversion works.

3. The right acquired by a valid appropriation being a vested property right, it cannot be diminished by subsequent legislation so long as it is used by the appropriator for some useful and beneficial purpose.

4. The duty of water is such a quantity of water necessary, when economically conducted and applied to the land without unnecessary loss, as will result in the successful growing of crops.

5. The duty of water is a complicated question of fact that depends largely upon the circumstances of each particular case.

6. In determining the quantity of water that can be put to a beneficial use of an appropriator, the policy of the law is to require, within reasonable limits, the greatest duty of water.

7. In determining the duty of water, it is the amount of water delivered to the land and not the amount diverted from the stream that must govern.

8. The prevailing customs and methods of applying water to the land in the interests of good husbandry in the territory where it is used are to be followed in determining the duty of water.

9. The state may regulate and control irrigation and the distribution and use of water therefor by virtue of its police power.

10. It is a proper exercise of the police power to prevent the wasting of water or the diversion of more water than can be put to a beneficial use.

11. A provision in an act of the legislature arbitrarily limiting an appropriation to three acre-feet in the aggregate during one calendar year for each acre of land (Comp.St.1929, § 81-6311) has no application to a valid appropriation which vested prior to its enactment.

12. Vonburg v. Farmers Irrigation District, 132 Neb. 12 270 N.W. 835, limited.

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

Suit by Enterprise Irrigation District against Robert H. Willis chief of the Bureau of Irrigation and Water Power and Drainage, and another, for an injunction restraining the defendants from closing the headgates of the plaintiff's irrigation canal. Judgment for defendants, and plaintiff appeals.

Reversed.

Mothersead & York, of Scottsbluff, for appellant.

Richard C. Hunter, Atty. Gen., C. G. Perry, Asst. Atty. Gen., and Wm. H. Wright, Sp. Counsel, of Omaha, for appellees.

Heard before SIMMONS, C. J., and ROSE, EBERLY, PAINE, CARTER, MESSMORE, and JOHNSEN, JJ.

CARTER, Justice.

This is a suit for an injunction brought by the Enterprise Irrigation District against Robert H. Willis, chief of the bureau of irrigation, water power and drainage, and A. C. Tilley, state engineer. At the time the suit was commenced the defendants were threatening to close the headgates of plaintiff's irrigation canal for the alleged reason that plaintiff had received all the water to which it was entitled during the irrigation season in question. In its petition the plaintiff asked that the defendants be enjoined from preventing it from diverting all the water that could be put to a beneficial use in the growing of crops. The trial court denied an injunction and plaintiff appeals.

The record discloses that in the year 1889 the Enterprise Ditch Company made an appropriation of water from the North Platte river, in accordance with the law of appropriation then in existence, in an amount in excess of 138.90 second-feet, subject only to the common-law rule that no more water could be diverted and appropriated than could be applied to a beneficial use. Thereafter the Enterprise Ditch Company sold its irrigation works and water appropriation to the plaintiff. Subsequent to the enactment of the irrigation law of 1895, chapter 69, providing for the creation of a state board of irrigation and for filing of claims and adjudication of water rights, a claim for such appropriation was filed with the state board of irrigation claiming an appropriation of 138.90 second-feet of water with a priority date of March 28, 1889. On January 7, 1897, the state board of irrigation entered its order, finding, adjudging and adjudicating that said appropriation was a valid appropriation for 138.90 second-feet of water with a priority of March 28, 1889, limited only by the rule that the amount so diverted should not be in excess of the amount that could be applied to a beneficial use. No appeal was taken from this order.

The irrigation laws of 1877 and 1889, the only ones on the subject at the time of plaintiff's appropriation, place no limitations upon the quantity of water that could be appropriated, save and except that the appropriation must be for some useful or beneficial purpose and within the limits of the capacity of the diversion works. See Laws 1877, p. 168; Laws 1889, c. 68. The irrigation law of 1895 limited for the first time the quantity of water that could be appropriated to a specific amount, the statute stating " that no allotment for irrigation shall exceed one cubic foot per second for each 70 acres of land for which said appropriation shall be made." Laws 1895, c. 69, § 20. The same act also provided: " Nothing in this act contained shall be so construed as to interfere with or impair the rights to water appropriated and acquired prior to the passage of this act." Laws 1895, c. 69, § 49. In 1911, the legislature placed a further limitation upon the quantity of water that could be appropriated, the statute providing, " that no allotment for irrigation shall exceed one cubic foot per second of time for each seventy acres of land nor three acre-feet in the aggregate during one calendar year for each acre of land for which such appropriation shall be made." Laws 1911, c. 153, § 19. (Italics ours). These same limitations appear in the irrigation law contained in the civil administrative code law of 1919. Laws 1919, c. 190, p. 837. The 1919 law also provided: " Nothing in this article contained shall be so construed as to interfere with or impair the rights to water appropriated and acquired prior to the fourth day of April, 1895." Laws 1919, p. 832. The last two cited sections of the civil administrative code of 1919 remain in force and are designated as sections 81-6311 and 46-506, respectively, Comp.St.1929. It is the contention of the defendants that the limitation of three acre-feet in the aggregate during one calendar year for each acre of land for which the appropriation shall have been made, as contained in section 81-6311, Comp.St.1929, applies to plaintiff's appropriation and, that amount having been exceeded at the time this suit was commenced, the plaintiff was not entitled to any more water and defendants should not be enjoined from closing the headgates of plaintiff's canal. Plaintiff contends that its appropriation is a right vested as of March 28, 1889, and that the statute in question has no retroactive force and, if such retroactive construction be placed upon it, it is violative of the due process clauses of the Constitution of Nebraska (article 1, § 3) and the Fourteenth Amendment to the Constitution of the United States, U.S.C.A. Defendants contend that the statute is a proper exercise of the police power of the state and is not inhibited by either the state or federal Constitutions.

That the state may supervise and control the appropriation, diversion and distribution of the public waters of the state and impose that duty upon administrative officers is settled by our former decisions. Farmers' Canal Co. v. Frank, 72 Neb. 136, 100 N.W. 286.Statutory provisions relating to the duties of administrative officers, in so far as they require or authorize a control and regulation of the diversion and distribution of appropriated waters in accordance with adjudicated priorities, are not inimical to the provisions of the state and federal Constitutions. As was said in Farmers' Canal Co. v. Frank, 72 Neb. 136, 100 N.W. 286, 294:" It is the evident purpose of the law, taken as a whole, to enforce and maintain a rigid economy in the use of the waters of the state. It has been and is the policy of the law in all the arid states and territories to require and enforce an economical use of the waters of the natural streams. The urgent necessities of the situation compel this policy by the very force of circumstances. One of the main objects of the system of administration of public waters prescribed throughout the arid regions is to restrain unnecessary waste, and to provide for an economic distribution of that element so necessary to the very existence of agriculture in those regions. This is also the policy of the state of Nebraska in its regulation of the use of the waters of the state, and the law should be construed so as to effect a reasonable, just, and economic distribution of water for irrigation purposes. The court will take judicial notice of the fact that there are hundreds of acres within the state susceptible of irrigation, to every acre which there is water enough to supply, and it is obvious that a construction of the law that will best distribute the use of the waters is to be preferred, if such construction is not inimical to any constitutional inhibitions or limitations."

The various statutory provisions for the distribution of water among different appropriators according to their...