Farmers' Irr. Dist. v. Frank

• Decision Date: 09 June 1904
• Citation: 100 N.W. 286,72 Neb. 136
• Parties: FARMERS' IRR. DIST. v. FRANK ET AL. FARMERS' CANAL CO. v. FRANK ET AL. WALKER v. FRANK ET AL.
• Court: Nebraska Supreme Court

72 Neb. 136

100 N.W. 286

FARMERS' IRR. DIST.

v.FRANK ET AL.

FARMERS' CANAL CO.

v.FRANK ET AL.

WALKER

v.FRANK ET AL.

Supreme Court of Nebraska.

June 9, 1904.

Syllabus by the Court.

1. By the irrigation act of 1895 (Laws 1895, p. 244, c. 69), the right to the use of water for irrigation purposes is attached to the land to be irrigated, and an application to the State Board of Irrigation for a permit to appropriate water for irrigation, which does not describe the location of the proposed canal nor contain a description of the land to be irrigated thereby, is too vague and indefinite to authorize the board to act, and no jurisdiction is acquired thereby to issue any permit thereupon.

2. The powers of the State Board of Irrigation exercised under section 16 of the irrigation act of 1895 (Laws 1895, p. 248, c. 69) are quasi judicial in their nature, and an adjudication by it of a right of priority of appropriation of water made before taking effect of the act of 1895, after proper notice, is final, unless appealed from, and cannot be collaterally attacked.

3. Under the facts in this case, held, that the right of the Farmers' Canal Company and its successor, Roberts Walker, to the appropriation of water awarded under the adjudication of the State Board of Irrigation, has not been lost by abandonment.

4. Nonuser must be continued for a time equal to the statutory limitation upon actions to recover the possession of real property, in order to lose the right of appropriation.

5. The provisions of section 28, art. 2, c. 93a, Comp. St. 1903, held not to be inimical to any provisions of the Constitution of the state of Nebraska.

Commissioners' Opinion. Department No. 3. Error to District Court, Scotts Bluff County; Grimes, Judge.

Action by the Farmers' Irrigation District against William Frank and others. Judgment for defendants, and the Farmers' Irrigation District and the Farmers' Canal Company and Roberts Walker bring error. Reversed.Wilcox & Halligan, for plaintiffs in error.

Charles F. Manderson, W. A. Dilworth, and Wright & Stout, for defendants in error.

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 2,200 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 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, p. 244, c. 69). This system tends to breed monopolies, and to lead to antagonisms and to 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, U. S. Ag. Dept. 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 6782, vol. 2, Cobbey's Ann. St. 1903, provides: “Every person, association or corporation hereafter intending 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 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 six 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 6775, Cobbey's Ann. St. 1903, 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,...