Hickman v. Loup River Public Power Dist.

• Decision Date: 02 March 1962
• Docket Number: No. 35112,35112
• Citation: 113 N.W.2d 617,173 Neb. 428
• Parties: Max D. HICKMAN, Appellant, v. LOUP RIVER PUBLIC POWER DISTRICT and United States of America, Appellees, Middle Loup Public Power and Irrigation District and North Loup River Public Power and Irrigation District, Interveners, Appellants, R. L. Cochran, Receiver of North Loup River Public Power & Irrigation District, Intervener, Appellant.
• Court: Nebraska Supreme Court

Page 617

113 N.W.2d 617

173 Neb. 428

Max D. HICKMAN, Appellant, v. LOUP RIVER PUBLIC POWER DISTRICT and United States of America, Appellees Middle Loup Public Power and Irrigation District and North Loup River Public Power and Irrigation District, Interveners, Appellants R. L. Cochran, Receiver of North Loup River Public Power & Irrigation District, Intervener, Appellant.

No. 35112.

Supreme Court of Nebraska.

March 2, 1962.

Syllabus by the Court

1. The Department of Water Resources of Nebraska has original and exclusive jurisdiction to hear and adjudicate all matters pertaining to water rights for irrigation, power, or other useful purposes, except as specifically limited by statute.

2. A representative suit is authorized by statute in this state when the question to be determined is one of common or general interest of many persons, or when the parties are numerous and it is impracticable to bring them all before the court.

3. Where a community of interest or a privity of estate exists between an intervener and other plaintiffs, a suit commenced before the expiration of the statutory period inures to the benefit of a person who intervenes therein after the time when an action would be barred.

4. Where the owner of a superior right seeks to acquire water being used for power purposes under an earlier priority he is limited to the statutory right of condemnation unless the just compensation can be determined by mutual agreement.

5. In a proceeding by a junior appropriator and others similarly situated to cancel and annul the appropriation of a senior appropriator, the Department of Water Resources has no authority to compel the acceptance of an offer of compensation in lieu of condemnation.

6. In a class action to cancel and annul an appropriation of public waters, an unaccepted offer by the respondent to waive its rights as against the petitioner does not make the question of the validity of respondent's appropriation moot.

7. One bringing a class action cannot dismiss the action for reasons personal to him over the objection of a person having a beneficial interest in the litigation common to that of the nominal petitioner. A court is bound by the same consideration in ruling on motions to dismiss.

John H. Evans, Broken Bow, for Hickman.

Neighbors, Danielson & Van Steenberg, Scottsbluff, Walter, Albert, Leininger & Grant, Columbus, for Loup River Public Power Dist.

Monsky, Grodinsky, Good & Cohen, Omaha, George A. Munn, Ord, Leo F. Clinch, Burwell, for Middle Loup Public Power & Irr. Dist.

Hotz, Hotz & Taylor, Omaha, for R. L. Cochran, etc.

Heard before CARTER, MESSMORE, YEAGER, SPENCER, BOSLAUGH, and BROWER, JJ.

CARTER, Justice.

This is an appeal by the petitioner Max D. Hickman from a final order of the Department of Water Resources of the State of Nebraska dismissing his petition for the cancellation and annulment of the appropriation rights of the respondents Loup River Public Power District and the United States of America, arising out of appropriation No. 2287 granted to Loup River Public Power District for 3,500 cubic feet of water per second of time with a priority date of September 15, 1932. Petitions of intervention filed by North Loup River Public Power and Irrigation District and its receiver R. L. Cochran and by Middle Loup Public Power and Irrigation District were also dismissed. Each of the interveners has perfected appeal to this court.

As a matter of convenience we shall hereafter refer to the petitioner as Hickman, to the respondent Loup River Public Power District as Loup District, to the North Loup River Public Power and Irrigation District as North Loup District, to R. L. Cochran, receiver of the North Loup River Public Power and Irrigation District, as receiver, to the Middle Loup Public Power and Irrigation District as Middle Loup District, to the Department of Water Resources of the State of Nebraska and its predecessors as department, and to the United States of America as United States.

The petitioner is the owner of an appropriation of the public waters of the Middle Loup River for the purpose of irrigation for 1.28 cubic feet per second of time with a priority date of October 23, 1939. His appropriation is junior in point of time to the claimed appropriation rights of Loup District, North Loup District, and Middle Loup District.

The Loup District obtained an appropriation of public waters of the Loup River for the purpose of generating power with a priority date of September 15, 1932, and with a diversion rate of 3,500 cubic feet per second of time. The purpose of this appropriation was for the operation of a hydroelectric power plant near Columbus, Nebraska. The diversion of water was to be made at a point below the confluence of the North Loup and Middle Loup Rivers, and other streams, to form the Loup River.

It is the contention of Hickman that in granting the corrected application of the Loup District the department fixed August 24, 1937, as the final date for perfecting the application of water to the beneficial use for which the appropriation was made. No appeal was taken from the order of the department approving the corrected application, and Hickman alleges that it was accepted and assented to by Loup District. Hickman further alleges that Loup District obtained from the department an extension of time for completing the construction work until July 1, 1938. Hickman alleges that Loup District did not complete its construction work until September 1, 1938, that it applied no water to the beneficial use for which taken under its appropriation right until June 1, 1938, and that the maximum amount of water diverted under its appropriation prior to August 24, 1937, was 506 cubic feet per second of time, although there was additional water available in the Loup River subject to diversion by Loup District. Hickman alleges that the failure of Loup District to comply with the order of the department approving and allowing the corrected application of Loup District, including the failure to complete its works prior to the time limited in the order and to apply water to the beneficial use for which it was appropriated prior to August 24, 1937, resulted in a failure by Loup District to acquire a final and complete appropriation of the waters of the Loup District, or a vested right therein, or the priority date of September 15, 1932. Hickman asserts that the Loup District, irrespective of the foregoing facts, claims the right to divert the waters of the Loup River to the extent of 3,500 cubic feet per second of time with a priority date of September 15, 1932, and that said claimed appropriation right is superior to that of Hickman.

Hickman asserts that there are a great many appropriators of water for irrigation from the Loup River and its tributaries who have priority dates junior to September 15, 1932, and whose diversion points are upstream from the diversion point of the Loup District. The junior appropriators are alleged to be similarly situated as Hickman and the action is allegedly brought on their behalf.

Hickman further alleges that Loup District in 1955, and subsequent thereto, made demands upon the department to prevent diversions of water by junior appropriators unless payment be made by them as compensation for interference with its appropriation in lieu of condemnation. Hickman alleges that junior appropriators have been coerced into making payments of large sums of money to Loup District to obtain needed irrigation water when in truth and fact Loup District had no valid appropriation rights for the reasons hereinbefore stated. The contention is made that unless the purported appropriation by Loup District for power purposes is cancelled and annulled, Loop District will continue to demand and collect such payments as compensation for interference with its water supply.

The United States is made a party defendant because of a suit brought by it to condemn 260 cubic feet of water per second of time for irrigation purposes, the same being the first 260 cubic feet of water out of the 3,500 cubic feet of water per second of time alleged by Loup District to have been appropriated by it for the generation of power. It is alleged that the validity of the condemnation proceeding brought in the United States District Court for the District of Nebraska is wholly dependent upon the validity of the appropriation of Loup District.

The Middle Loup District and the North Loup District, as well as its receiver, filed petitions in intervention in the proceeding, praying for the cancellation and annulment of Loup District's appropriation right with the priority date of September 15, 1932, for the same reasons set out in Hickman's petition.

By answer filed to the petition Loup District admits that it has claimed the right to divert 3,500 cubic feet of water per second of time with a priority date of September 15, 1932, since March 23, 1934. It alleges a right superior to all appropriators whose applications for appropriative rights were filed subsequent to September 15, 1932, and that subsequent appropriators including Hickman may not interfere with the exercise of its rights except by formal condemnation proceedings or by an agreement for payment of compensation in lieu of condemnation, as provided by section 70-669, R.R.S.1943. Loup District admits making demands upon the department to prevent interference with its appropriation by junior appropriators, that demands were made upon junior appropriators for compensation for interference in lieu of condemnation and that it will continue to make such demands for compensation hereafter. Loup District alleges that it complied with all requirements of its granted application and that its appropriation is in all respects valid. It alleges that it entered into leases with Nebraska for the use of water for power purposes and paid the amounts due thereunder, all in accordance with section 46-236, R.R.S.1943....