Frenchman Val. Irr. Dist., Application of
| Decision Date | 11 July 1958 |
| Docket Number | No. 34340,34340 |
| Parties | Application of The FRENCHMAN VALLEY IRRIGATION DISTRICT, a corporation, for approval of a contract between said district and the United States of America. The FRENCHMAN VALLEY IRRIGATION DISTRICT, a corporation, Appellant-Cross- Appellee, v. Earl SMITH et al., Appellees-Cross-Appellants. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Section 46-194, R.R.S.1943, makes no specific requirement as to the form of notice to be given the electors with reference to an election to be held to approve or disapprove a contract to be entered into between an irrigation district and the United States of America for the sale of the irrigation facilities of such a district.
2. By statute, the board of directors of any irrigation district heretofore or hereafter organized may, in its discretion, before or after making any contract with the United States of America, or the taking of any particular steps or action, commence a special proceeding in the district court of the state, in and by which the proceedings of such board and of such district leading up to or including the making of any such contract, and the validity of the terms thereof, or the taking of any particular steps or action, shall be judicially examined, approved, and confirmed, or disapproved and disaffirmed.
3. By federal statute, the Secretary of the Interior is granted authority to enter into contracts with existing irrigation districts, provided that no contract with an irrigation district shall be binding on the United States of America until the proceedings on the part of the district for the authorization of the execution of the contract with the United States of America shall have been confirmed by decree of a court of competent jurisdiction, or pending appellate action if ground for appeal be laid.
4. By statute, the board of directors of an irrigation district may enter into any obligation or contract with the United States of America for the construction, operation, and maintenance of the necessary works for the delivery and distribution of water therefrom under the provisions of the federal Reclamation Act, and all acts amendatory thereof or supplemental thereto, and the rules and regulations established thereunder, or the board may contract with the United States of America for a water supply under an Act of Congress providing for or permitting such contract.
5. By statute, the board of directors of any irrigation district organized under the laws of this state may enter into contracts for a supply of water for the irrigation of lands within such irrigation district with the United States of America.
6. By statute, when the officers of the United States Bureau of Reclamation shall determine that any water so developed or stored is in excess of the needs of the project as then completed or is flood or unused water, the United States may contract to furnish such developed, stored, flood, or unused water, under the terms and conditions imposed by Act of Congress and the rules and regulations of the United States, to any person who may have theretofore been granted a permit to appropriate a portion of the normal flow of any stream if the water so appropriated, shall during such portion of the year, be found insufficient for the needs of the land to which it is appurtenant. The United States and every person entering into a contract shall have the right to conduct such water into and along any of the natural streams of the state, but not so as to raise the waters thereof above the ordinary high-water mark, and may take out the same again at any point desired, without regard to the prior rights of others to water from the same stream; but due allowance shall be made for losses in transit, the amount of such allowance to be determined by the Department of Roads and Irrigation. 7. The contract must be construed with reference to the federal and state statutes, which are as much a part thereof as though incorporated into the body of it.
8. 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.
9. By statute, the United States of America and every person intending to appropriate any of the public waters of the state shall, before commencing the construction, enlargement, or extension of any works for such purpose, performing any work in connection with the same, or taking any water from any constructed works, make application to the Department of Roads and Irrigation for a permit to make such appropriation.
10. By federal statute, the Secretary of the Interior is authorized and directed to locate and construct irrigation works for the appropriation, development, and storage of flood and unused waters for irrigation. The federal government, under the laws of this state, has a right to appropriate flood and unused waters in connection with any irrigation project constructed by the United States.
11. By statute, the United States of America is authorized, in conformity to the laws of this state, to appropriate, develop, and store any unappropriated flood or unused waters, in connection with any project constructed by the United States pursuant to the provisions of an Act of Congress approved June 17, 1902, being an act providing for the reclamation of arid lands (32 Stat.L. 388), and all acts amendatory thereof and supplemental thereto.
12. By federal statute, the United States is authorized to enter into contracts in a form to be approved by the Secretary of the Interior with an irrigation district organized under state law for the construction or rehabilitation of irrigation works, and providing for payment of the costs thereof by the district during the time they are in control of the United States in not more than 40 years.
13. Prior to or in connection with the settlement and development of each of these projects, the Secretary of the Interior is authorized in his discretion to enter into agreement with the proper authorities of the state, and the state shall cooperate with the United States in promoting the settlement of the projects or divisions after completion and in the securing and selecting of settlers. Such contract or contracts with irrigation districts hereinbefore referred to shall further provide that all irrigable land held in private ownership by any one owner in excess of 160 irrigable acres shall be appraised in a manner to be prescribed by the Secretary of the Interior and the sale prices thereof fixed by the secretary on the basis of its actual bona fide value at the date of appraisal without reference to the proposed construction of the irrigation works; and that no such excess lands so held shall receive water from any project or division if the owners thereof shall refuse to execute valid recordable contracts for the sale of such lands under terms and conditions satisfactory to the Secretary of the Interior and at prices not to exceed those fixed by the Secretary of the Interior.
14. Congress has the undoubted power to restrict the right to the use of water furnished from government projects to 160 acres standing in the name of any one landowner. Having the power to dispose of the right to the use of water made available by the completion of a reclamation project, Congress is in a position to fix the terms and conditions of the use and to authorize the Secretary of the Interior to perform any and all acts and to make such rules and regulations as may be necessary and proper for the purpose of carrying its legislation into full force and effect.
Russell & Colfer, McCook, for appellant.
Charles M. Bosley, Robert C. Bosley, Palisade, for appellees.
Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE and BOSLAUGH, JJ.
This is a special proceeding brought by the Frenchman Valley Irrigation District in the district court for Hitchcock County for the approval of the organization of the district and the proceedings of the board of directors leading up to and including the making of a contract and the validity of the terms thereof, between said district and the United States of America for the sale by the district of its diversion dam and main canal, including easements, rights-of-way, and all appurtenances thereto, except natural flow water rights, and for the purchase of storage waters through works to be constructed by the United States to supplement the district's natural flow water rights.
For convenience we will refer to the parties as designated in the district court, or to the Frenchman Valley Irrigation District as the district, and the United States of America as the United States.
The issues set forth in the pleadings are in substance as follows.
The plaintiff's petition alleged that the Frenchman Valley Irrigation District, a corporation, was duly organized under and by virtue of the irrigation laws of Nebraska on February 12, 1912, and ever since said date has had a duly elected and qualified board of three directors, and has acted as an irrigation district and conducted its business since said date, with its offices in Culbertson, Hitchcock County, Nebraska; that the said district is located in Hitchcock County, Nebraska; that the United States, through the Department of the Interior, proposed to purchase the district's irrigation system consisting of its diversion dam, main canal, easements, and rights-of-way, and all appurtenances thereto, except existing water rights, and to enlarge and rehabilitate the entire system and provide the district with storage waters from the government reservoir at Enders, Nebraska, to supplement its natural flow of waters from the Frenchman River and Stinking Water Creek; that a contract covering the subject matter was submitted to the board of directors of the district and election was held October 2, 1956, at which the electors of...
To continue reading
Request your trial
-
U.S. v. Tulare Lake Canal Co.
...Rio Grande Water Users Ass'n v. Middle Rio Grande Conservancy Dist., 57 N.M. 287, 258 P.2d 391 (1953); Application of Frenchman Valley Irrigation Dist., 167 Neb. 78, 91 N.W.2d 415 (1958); Hearings on H.R. 13921 before the House Committee on Irrigation of Arid Lands (Part II), 63d Cong., 2d ......
-
Basin Elec. Power Co-op. v. State Bd. of Control
... ... , Vines & Hunkins, Wheatland, for Wheatland Irrigation Dist ... George J. Millett, Laramie, for ... and "d" above are irrelevant to a change-of-use application unless it can be shown that other appropriators are injured ... 91, 371 P.2d 775, 780; Enterprise Irr. Dist. v. Willis, 135 Neb. 827, 284 N.W. 326, 329; In re ... 52, 46 N.W.2d 884, 888; and Application of Frenchman Valley Irrigation District, 167 Neb. 78, 91 N.W.2d 415, ... ...
-
Central Platte Natural Resources Dist. v. State of Wyo., A-17004
... ... For purposes of an instream flow application, unappropriated water is that water which is available for appropriation ... & Swan, Holdrege, for appellee Central Nebraska Public Power and Irr. Dist ... George E. Svoboda and Bradley E. Nick, of ... Enders Reservoir, supra; Frenchman Valley Irr. Dist. v. Smith, 167 Neb. 78, 91 N.W.2d 415 (1958). This is ... ...
-
Keating v. Neb. Pub. Power Dist.
... ... , which is the date an applicant files an appropriation permit application with DNR. Neb.Rev.Stat. § 46-205; ... Northport Irr. Dist. v. Jess, ... Frenchman" Valley Irr. Dist. v. Smith, 167 Neb. 78, 99, 91 N.W.2d 415, 428 (1958) (\xE2\x80" ... ...
-
The Undefeatable Opponent: How the Effective Administration of Water Is an Exception to Predeprivation Hearings Ordinarily Required by Due Process in Keating v. Neb. Pub. Power District, 660 F.3d 1014 (8th Cir. 2011)
...Irrigation Dist., 142 Neb. 141, 5 N.W.2d 240 (1942). 111. NEB. CoNST. art. XV, §§ 5-6. 112. Frenchman Valley Irrigation Dist. v. Smith, 167 Neb. 78, 91 N.W.2d 415 113. Id., 91 N.W.2d 415. 114. Id. at 99, 91 N.W.2d at 428. 115. Id. at 99, 91 N.W.2d at 428. 116. City of Fairbury v. Fairbury M......