In re Applications Nos. 2354 and 2374 of Central Nebraska Public Power & Irrigation Dist.

• Decision Date: 08 April 1937
• Docket Number: 30092.
• Citation: 272 N.W. 560,132 Neb. 547
• Parties: IN RE APPLICATIONS NOS. 2354 AND 2374 OF CENTRAL NEBRASKA PUBLIC POWER & IRRIGATION DIST. v. CENTRAL NEBRASKA PUBLIC POWER & IRRIGATION DIST. ET AL. COZAD DITCH CO. ET AL.
• Court: Nebraska Supreme Court

272 N.W. 560

132 Neb. 547

IN RE APPLICATIONS NOS. 2354 AND 2374 OF CENTRAL NEBRASKA PUBLIC POWER & IRRIGATION DIST.

COZAD DITCH CO. ET AL. v. CENTRAL NEBRASKA PUBLIC POWER & IRRIGATION DIST. ET AL.

No. 30092.

Supreme Court of Nebraska.

April 8, 1937

Syllabus by the Court.

1. The department of roads and irrigation is neither a necessary nor a proper party to a proceeding on appeal to secure a reversal, modification, or vacation of a decision or order by it made and entered.

2. The effect of the amendments made after remand to the department of roads and irrigation, as permitted by the judgment of this court in Osterman v. Central Nebraska Public Power & Irrigation District, 131 Neb. 356, 268 N.W. 334, was to continue for all purposes the original proceeding in full force and effect, including jurisdiction of the parties and the subject-matter of the litigation, modified of course to conform to the limitations imposed by the amendments so made.

3. Intervention in this proceeding, after reversal in this court and remand to the department of roads and irrigation for further proceedings, was not intended to change the nature and character of the action itself, nor to permit the raising of new issues therein.

4. Proceedings in this court to obtain a reversal, modification or vacation of a final order or decision made and entered by the department of roads and irrigation are limited to an appeal as now prescribed for the review in this court of final judgments and orders entered in the district courts in civil cases.

5. Proceedings in error where improperly instituted in this court will be dismissed on motion.

6. An appeal from the department of roads and irrigation will be dismissed where the record does not disclose the rendition of a final order or judgment from which such appeal is prosecuted.

7. Where, on a second appeal to this court in a proceeding originally instituted in the department of roads and irrigation, it appears that at the first hearing of such cause in this court substantially every question involved or presented in the record submitted on such second appeal was raised, considered, and in effect determined adversely to the present contentions of the appellants, such proceeding will be dismissed.

Appeal from Department of Roads and Irrigation.

Proceeding in the matter of application numbers 2354 and 2374 of the Central Nebraska Public Power & Irrigation District for the allowance and appropriation of waters in the North Platte and Platte Rivers. From adverse orders of the Department of Roads and Irrigation of the State of Nebaska, the Cozad Ditch Company and others appeal.

Appeal dismissed.

Hoagland, Carr & Hoagland, of North Platte, Cordeal, Colfer & Russell, of McCook, B. J. Cunningham and Cleary, Suhr & Davis, all of Grand Island, E. J. Patterson, P. S. Heaton, and Paul Morris, all of Central City, Coufal & Shaw, of David City, Lloyd L. Pospishil, of Schuyler, William H. Lamme, of Fremont, and Ray E. Sabata, of David City, for appellants.

R. O. Canaday and P. E. Boslaugh, both of Hastings, and Daniel Stubbs, of Lincoln, for appellees.

Heard before GOSS, C. J., and ROSE, GOOD, EBERLY, DAY, and CARTER, JJ.

EBERLY, Justice.

Certain motions have been filed in this cause and argued before the bar of this court. Preliminary to their disposition, it may be said that this is a second appearance of this cause in this court. Originally it was presented here under the title of Osterman v. Central Nebraska Public Power & Irrigation District(In re Applications Nos. 2151, 2351, 2354, 2355, 2358, 2374 of Central Nebraska Public Power & Irrigation District), and the matters in dispute were disposed of in an opinion reported in 131 Neb. 356, 268 N.W. 334, in which the orders of the department of roads and irrigation, approving and granting applications 2354, 2374, et al., were each set aside, annulled and revoked, and the cause remanded to such department with directions, if desired, to grant leave to amend said applications by limiting the use of the waters taken thereunder to power purposes and to irrigation of lands situated within the Platte river watershed. The record now before us discloses that upon remand the applications 2354 and 2374 were amended, as directed by this court; that on November 27, 1936, amended application 2374 was in due form granted and approved by the department of roads and irrigation, " subject to the following limitations and conditions, viz.: (In application 2374) 1st. The water appropriated shall be used for the purpose of power and irrigation, said water, however, not to be diverted over and beyond the watershed of the Platte river and applied to lands situated without the basin of the Platte river. * * * 5th. The prior rights of the owners of land bordering on this stream or through which this stream flows, to so much of the natural flow of the stream as is necessary for domestic uses, including stock water, must be respected. 6th. The prior rights of all persons who, by compliance with the laws of the state of Nebraska, have acquired a right to the use of the waters of this stream must not be interfered with by this appropriation."

As to amended application 2354, the conditions of the grant were: In paragraph 1 were included the conditions incorporated in the first paragraph of amended application 2374; and the following in paragraphs 6 and 7:

" 6th. The rights of all persons who by compliance with the laws of the state of Nebraska governing in the appropriation of water, or who by continuous beneficial use have acquired the right to use of the waters of Platte river or any tributary stream, or any stream to which Platte river is tributary, prior to the date of this filing, shall not be interfered with by this appropriation. 7th. This grant is made subject to the provisions of the Nebraska irrigation laws, which gives preference to appropriators using the water for domestic and agricultural uses, over those using it for manufacturing and power purposes."

It may be noted in passing that an " amendment" implies " an addition or change within the lines of the original instrument as will affect an improvement or better carry out the purpose for which it was framed." 2 C.J. 1317. See, also, Livermore v. Waite, 102 Cal. 113, 118, 36 P. 424, 25 L.R.A. 312.And it implies a correction of errors. McCleary v. Babcock, 169 Ind. 228, 233, 82 N.E. 453.It also implies an improvement, a correction of faults or errors, or a mistake. Hardin v. Boyd, 113 U.S. 756, 5 S.Ct. 771, 28 L.Ed. 1141; McCleary v. Babcock, supra; Shroyer v. Pittenger, 31 Ind.App. 158, 67 N.E. 475; Lennox v. Vandalia Coal Co., 158 Mo. 473, 488, 59 S.W. 242; In re Pennsylvania Telephone Co., 2 Chest.Co.Rep. (Pa.) 129, 131; Givens v. Wheeler, 6 Colo. 149, 151; Woodruff v. Dickie, 28 N.Y.Super. Ct.(5 Rob.) 619, 622.

It is common practice, in case of reversal on appeal, for the appellate court to remand the cause with directions to the lower court to permit amendments. The effect of the amendment, if made, is to continue for all purposes the original proceeding in full force and effect, including jurisdiction of the parties and subject-matter of the litigation, modified of course to conform to the limitations imposed by the amendment so made. McKeighan v. Hopkins, 19 Neb. 33, 26 N.W. 614; Norfolk Beet-Sugar Co. v. Hight, 59 Neb. 100, 80 N.W. 276; McCague Savings Bank v. Croft, 87 Neb. 770, 128 N.W. 504; Butler v. Secrist, 92 Neb. 506, 138 N.W. 749; Criswell v. Criswell, 101 Neb. 349, 358, 163 N.W. 302, L.R.A.1917E, 1103.

The order of reversal of this court, when complied with, was effective to continue the original proceeding, to preserve the priority of the original applications within the scope of the amendment permitted, and was also effective to secure in the tribunal to which the remand was made the retention of uninterrupted jurisdiction over parties to the original proceeding as amended, and of the subject-matter thereof. Farmers' Canal Co. v. Frank, 72 Neb. 136, 100 N.W. 286.

Thereafter, the parties who were such at the time of the hearing and determination of the issues presented to this court on the former appeal commenced proceedings in the department of roads and irrigation to set aside said orders granting and approving amended applications 2354 and 2374. Certain other parties joined with them, who were not parties in the original case of Osterman v. Central Nebraska Public Power & Irrigation District. Whatever designation may be made use of to identify those for the first time joining in this proceeding, they are substantially interveners entitled to all the rights and subject to all the liabilities of that status. The present case is but a continuation of the Osterman Case. It is, in fact, the same case, with the same subject-matter contained in the original proceeding, but substantially limited in the continuance thereof. Intervening after a final decree, the parties so doing take the case as they find it. They are bound by the law of the case previously formally declared or necessarily determined. Such intervention is not intended to change the nature and character of the action itself, or to stop the machinery of the trial thereof. Reay v. Butler, 2 Cal.Unrep. 501, 7 P. 669, 671.

The controlling rule, as applied to the situation here presented appears to be: " He (an intervener) has, or may be given, the benefit of proof already taken, and may be required to accept it as evidence against him. * * * An intervener must abide by the pleadings as he finds them at the time of his entry; he cannot be heard to raise any new issue. Thus an intervener cannot enlarge the scope of a suit by setting up a defense not open to defendant on the ground that, if he had been sued, such defense would have been...