Farmers Canal Company v. Frank

• Citation: 100 N.W. 286,72 Neb. 136
• Decision Date: 09 June 1904
• Docket Number: 13,370
• Parties: FARMERS CANAL COMPANY ET AL. v. WILLIAM FRANK ET AL
• Court: Nebraska Supreme Court

100 N.W. 286

72 Neb. 136

FARMERS CANAL COMPANY ET AL. v. WILLIAM FRANK ET AL

No. 13,370

Supreme Court of Nebraska

June 9, 1904

ERROR to the district court for Scott's Bluff county: HANSON M GRIMES, JUDGE. Reversed with directions.

REVERSED.

Wilcox & Halligan, for plaintiffs in error.

Charles F. Manderson, W. A. Dilworth and Wright & Stout, contra.

OPINION

LETTON, C.

On the 14th day of April, 1902, William Frank, defendant in error herein, filed in the office of the secretary of the state board of irrigation, his application for an appropriation of 2200 cubic feet per second of time of the water of the North Platte river for irrigating and other beneficial purposes, proposing to construct a canal about 150 miles in length and to irrigate about 150,000 acres of land. The point of diversion of the water and the line of the proposed canal being substantially the same as that of a canal, the construction of which had been begun by the Farmers Canal Company in March, 1888, but which had only been partially constructed to a distance of about 20 miles from the point of diversion and was only in actual use to such an extent as to water about 5,000 acres of land. In the application filed by Frank with the state board of irrigation, which application is made out upon a printed form furnished by the state board, the location of the proposed canal and the description of the lands which it is proposed to irrigate are set forth as follows:

"7th. That said ditch or canal will be about 150 miles in length, and pass through the following sections of land, as shown on the accompanying township plats, viz.: See plat herewith. (Describe each section through which the canal passes, stating township and range.)

"11th. That the proposed ditch or canal is to be built with the intention of supplying water to irrigate the following sections or quarter-sections of land, viz.: All lands between the line of proposed canal and North Platte river, as shown by the accompanying plats (give sections and quarter sections, stating number, township and range) amounting in all to about 150,000 acres. (Total number of acres.)" The words in italics are written, the others are printed in the blank form.

Accompanying this application were four blank township plats, but these plats are totally devoid of any indication as to what township, county or state they are intended to represent, and contain no line, mark or tracing to indicate the location of any proposed canal, or anything to show the lands it is intended to irrigate. In fact they are an absolute nullity so far as giving any information in regard to the location of the proposed canal or the description of the land sought to be reclaimed is concerned.

There are two conflicting ideas upon which the laws of the several states and territories relating to the use of waters for the purposes of irrigation are based. One is that any person or individual may appropriate surplus waters which have not theretofore been appropriated, and may use the same to irrigate such lands as he may see fit. This was the basis of our irrigation law in this state until the passage of the act of 1895. Laws 1895, ch. 69. This system tends to breed monopolies, and to lead to antagonisms, strife and dissension. Since the land in arid regions is useless for the purpose of agriculture unless water is applied to it, this doctrine makes the landowner dependent upon the owner of the water right and leads to gross exactions and abuses. The doctrine of private ownership of water for irrigation purposes, disassociated from the land to which it is designed to be applied, has been proved by long experience to be detrimental to the public welfare. It has proved productive of endless controversies and abuses, and has given rise to interminable litigation.

The other doctrine is that the right to the use of water should never be separated from the land to which it is to be applied. "Where this doctrine prevails, canals and ditches become like railroads, great semi-public utilities, means of conveyance of a public commodity, their owners entitled to adequate compensation for services rendered, but having no ownership in the property distributed." Report on irrigation in California, United States Agricultural Department, 1901. It is unnecessary to set forth here the advantages of this idea. By the adoption of the irrigation law of 1895, which was modeled upon the Wyoming law, this state adopted the latter policy, by which the right to use the water shall not be granted separate from the land to which it is to be applied, and that the right to use the water should attach to the land, and, when the land is sold, be sold with it; and, for this reason, the statute is explicit in requiring a description of the land to be irrigated and the amount thereof to be set forth in the application.

Section 28, article II, chapter 93a, Compiled Statutes (Annotated Statutes, 6782), provides:

"Every person, association or corporation hereafter in tending to appropriate any of the public waters of the state of Nebraska shall, before commencing the construction, enlargement or extension of any distributing works, or performing any work in connection with said appropriation, make an application to the state board for a permit to make such appropriation. Said application shall set forth the name and post office address of the applicant, the source from which said appropriation shall be made, the amount thereof as near as may be, location of any proposed work in connection therewith, the time required for their completion, said time to embrace the period required for the construction of the ditches thereon and the time at which the application of the water for beneficial purposes shall be made, which said time shall be limited to that required for the completion of the work when prosecuted with diligence, the purpose for which water is to be supplied, and if for irrigation a description of the land to be irrigated thereby, and the amount thereof, and any additional facts which may be required by the state board. On receipt of this application, which shall be of a form prescribed by the state board and to be furnished by the secretary without cost to the applicant, it shall be the duty of the state board through its secretary, to make a record of the receipt of said application and cause the same to be recorded in its office, and to make a careful examination of the application to ascertain whether it sets forth all the facts necessary to enable the state board to determine the nature and amount of the proposed appropriation. If such an examination shows the application in any way defective it shall be the duty of the state board to return the same to the applicant for correction. * * * Provided, however, That the state board, through its secretary, may, upon examination of such application, endorse it approved for a less amount of water than the amount of water stated in the application, or for a less amount of land or for a less period of time for perfecting the proposed appropriation than that named in the application." (The italics are not in the statute but are inserted by the writer.)

The law further requires, upon the approval and allowance of an application, that the applicant shall file in the office of the state board, within 6 months thereafter, a plat which shall show, among other things, the legal subdivisions of the land upon which the water appropriated is to be applied. Further than this the approval of the application by the secretary may be for a less amount of land or less amount of water than asked for in the application; and the final certificate of appropriation provided for by section 21, article II, chapter 93a, Compiled Statutes (Annotated Statutes, 6775), is required to set forth a description of the land to which the water is to be applied and the amount thereof.

It will be observed that the application filed by Frank falls far short of complying with the requirements of the statute. It further disregards entirely the requests set forth in the blank form upon which the application is made. In the form furnished by the board, the applicant is requested to "describe each section through which the canal passes, stating township and range," and is further requested to give "sections and quarter-sections, stating number, township and range and total number of acres" of the sections or quarter-sections of land which it is intended that the proposed canal shall supply water to irrigate. None of this is done in Frank's application.

At the hearing before the board upon this application, protests were filed by the Farmers Canal Company and Roberts Walker who claimed to have a prior appropriation of water to irrigate the lands for a distance of 80 miles under the proposed canal; and a petition in intervention was filed by the Farmers Irrigation District, which had filed a subsequent application for an appropriation of water covering a part of the same territory. At the hearing, an opinion and order was rendered by the board of irrigation in favor of William Frank, Roberts Walker and the Farmers Canal Company, which confirmed the rights of the Farmers Canal Company and Roberts Walker to an appropriation of water as provided in an order of the board of irrigation made January 9, 1897; granted the application of William Frank, subject to the rights of the Farmers Canal Company, under the aforesaid order, and dismissed application numbered 675 filed by the Farmers Irrigation District, for the reason that the lands described in said application were covered by the canal of the Farmers Canal Company and by the application filed by William Frank prior to the filing of the application of the Farmers Irrigation District.

From this judgment of...