Enterprise Irrigation District v. Tri-State Land Company

• Decision Date: 18 October 1912
• Docket Number: 17,522
• Citation: 138 N.W. 171,92 Neb. 121
• Parties: ENTERPRISE IRRIGATION DISTRICT ET AL., APPELLEES, v. TRI-STATE LAND COMPANY ET AL., APPELLANTS
• Court: Nebraska Supreme Court

138 N.W. 171

92 Neb. 121

ENTERPRISE IRRIGATION DISTRICT ET AL., APPELLEES, v. TRI-STATE LAND COMPANY ET AL., APPELLANTS

No. 17,522

Supreme Court of Nebraska

October 18, 1912

APPEAL from the district court for Scott's Bluff county: RALPH W. HOBART, JUDGE. Reversed and dismissed.

Judgment reversed and the cause dismissed, without prejudice.

C. C Flansburg and Wright & Duffie, for appellants.

Morrow & Morrow, Harry N. Haynes, Wilcox & Halligan, G. J. Hunt and W. W. White, contra.

LETTON J. HAMER, J., concurring in part, and dissenting in part.

OPINION

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, 1889, 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 Scott's 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 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 claims 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 Land 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 a failure to apply the same to a beneficial use for a continuous period of more than ten 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 irrigation to the canals thus far constructed. There are no tributaries between the headgate of defendants' canal and the headgate of the canals of any of the plaintiffs. If no water were diverted at defendants' headgate, the quantity of water flowing would not be materially increased or diminished when it reached the headgate of the lowest canal, belonging to a party to this suit. On the 16th of September, 1887, the Farmers Canal Company, a corporation, posted a notice at the proposed point of diversion of its intention to divert from the North Platte river for the purpose of irrigation a quantity of water sufficient to fill a canal 40 feet wide on the bottom and carry water to a depth of 4 feet, and on the same day notice was duly filed and recorded in the office of the county clerk of Cheyenne county which at that time included the territory now embraced in Scott's Bluff county. In March, 1888, the Farmers Canal Company commenced the construction of the canal, and continued work on it until about the year 1890, at which time it was constructed a distance of about 10 miles. The ditch was then about 12 feet wide on the bottom just below the headgate. The first mile was about 6 feet deep, and was capable of carrying water to a depth of 2 feet. There were not more than 1,500 acres susceptible of irrigation from the canal as then constructed, and the capacity of the canal was not sufficient to carry water for more than 1,000 to 1,200 acres of land. On November 17, 1890, this company posted at the headgate, and filed for record in the office of the county clerk of Scott's Bluff county, a notice of its intention to divert water, in addition to its former claim, to the amount of 200,000 miner's or statutory inches. The notice also specified that the canal shall be 80 feet wide on the bottom, with a slope of one to one, and a depth of 8.84 feet at the point of the diversion, with an average grade of not more than 2 feet per mile. In 1891 the canal company issued bonds secured by mortgage upon all its property, and sold about $ 80,000 worth. In the spring of 1892 it resumed work on the canal with the proceeds of the sale, constructed a substantial headgate costing about $ 8,000, and excavated the canal to a width of about 100 feet to a point 500 feet below the headgate, and from there to a point about 4,000 feet below to a width of 60 feet on the bottom, and from there to a point about 19 miles below to a width of 30 feet on the bottom, and water was conducted from the river therein. The canal as constructed was capable of carrying water to a depth of 6 feet, and was of sufficient capacity to irrigate 30,000 acres of land. Twenty-five miles of the canal from a point below the 19 miles mentioned had been opened up at various places to the full width, and nearly one-quarter of the work thereon had been performed in detached sections, but had not been connected up with the 19 miles above. All this work was accomplished by June 1, 1893, at a total expenditure of about $ 96,000, when the company ceased work on the canal because of inability to procure funds, except that it kept one team employed which continued excavation work until October, 1895. From that time the Farmers Canal Company did no further work upon the canal. As then constructed there were 5,661.5 acres of land susceptible of irrigation from the canal, and other lands lying under the Enterprise and Ramshorn ditches to the amount of 2,540 acres which were also susceptible of irrigation from this canal, had not the Enterprise and Ramshorn ditches been built to irrigate such lands. Prior to 1897 not more than 500 acres had been irrigated annually from the canal; prior to 1907 not more than 2,000 acres; in 1907, 5,000 acres; in 1908, 7,000 acres; in 1909, 10,000 acres; and in 1910, 20,000 acres of land were irrigated from the canal. In 1897 and 1898 work was done by the company and users of water with its consent in repairing the canal and protecting its banks and headgate. After work ceased, the company endeavored to sell its bonds and to exchange bonds with different contractors for the purpose of building a canal, which negotiations continued until after the mortgage upon the property was foreclosed.

The stipulation sets out with much particularity that, at various dates in a period extending from January 14, 1888, until the 1895 act took effect, the other plaintiffs or their grantors except the Steamboat Ditch Company and the Gering Irrigation District, each posted notices and duly filed and recorded the same, claiming various amounts of water from the river, and that each constructed canals and appropriated the amounts of water it now claims in the petition and cross-petitions. The Steamboat Ditch Company made application to the state board under the 1895 act on October 22, 1895, and the Gering Irrigation District on March 15, 1897, for permits to appropriate water. Permits were granted, their canals were constructed, proofs filed with the state board as to each of said claims, and a...