Kersenbrock v. Boyes

• Decision Date: 27 February 1914
• Docket Number: No. 18,114.,18,114.
• Citation: 95 Neb. 407,145 N.W. 837
• Parties: KERSENBROCK v. BOYES ET AL.
• Court: Nebraska Supreme Court

95 Neb. 407

145 N.W. 837

KERSENBROCK

v.BOYES ET AL.

No. 18,114.

Supreme Court of Nebraska.

Feb. 27, 1914.

Syllabus by the Court.

The irrigation law of 1911, authorizing the state board of irrigation to cancel water appropriations not put to a “beneficial or useful purpose,” applies to applications made both before and after the passage of the act. Laws 1911, c. 153, §§ 17, 37.

Under Irrigation Law 1911, c. 153, the authority of the state board of irrigation to cancel an application to appropriate public water for irrigation or power may be exercised after notice and an opportunity to be heard, “if it appears that such water appropriation has not been put to a beneficial or useful purpose,” and the legislation is not void because it applies to both past and future applications.

A vested right to the use of public water for irrigation or power depends upon the appropriator's compliance with the conditions imposed by statute, and is not acquired by means of a certificate procured by fraud from the state board of irrigation.

A feasible plan for applying public water to a beneficial use, undertaken and carried out in good faith by an appropriator, is necessary to the acquiring of a vested right to a statutory appropriation for irrigation or power.

Under the laws in force before the irrigation act of 1911 (Laws 1911, c. 153) was passed (Laws 1895, c. 69), an applicant for an appropriation of water did not, as a matter of right, have more than ten years to comply with statutory conditions for acquiring such an appropriation.

Upon appeal from an order of the state board of irrigation, the inquiry is ordinarily limited to the questions submitted to that tribunal.

The state board of irrigation is a tribunal, quasi judicial in its nature, with authority to perform statutory duties in administering public waters, and is not disqualified to hear a controversy between the state and an appropriator whose right is contested by the state.

Appeal from District Court, Seward County; Good, Judge.

John H. Kersenbrock made two applications to the State Board of Irrigation for appropriations of water, which applications were resisted by the Blue River Power Company and the State of Nebraska, and, from action of the district court upholding an order of the Board canceling both applications, he appeals. Affirmed.

Hamer, J., dissenting.B. F. Good, of Lincoln, and W. N. Hensley, of Columbus, for appellant.

J. J. Thomas, Norval Bros., and Edwin Vail, all of Seward, for appellees.

ROSE, J.

The subject of controversy is the right of plaintiff to use for irrigation and power public water of the West fork of the Blue river, where it crosses his land near the center of the southeast quarter of section 32, township 9, range 3 east, in Seward county. Plaintiff asserts that he acquired water rights under two applications made to the state board of irrigation December 20, 1895, one for an appropriation of 2 1/7 cubic feet of water a second for irrigation, and the other for an appropriation of 105 cubic feet of water a second for the generating of power for a gristmill, and for the pumping of water for irrigation, including the right to construct a dam 5 feet high at the place described. A certificate evidencing the appropriation for irrigation was issued to plaintiff May 20, 1907; but no certificate showing an appropriation for power was ever issued to him, though he pleads that he complied with statutory conditions, that he performed the necessary work, and made the required improvements, that he applied public water to beneficial uses, that he acquired, and still retains, the rights sought under both applications, and that his privilege of applying water to beneficial uses still exists. His claims are resisted by the Blue River Power Company and the state of Nebraska, defendant, on the grounds that he never perfected his appropriations by complying with statutory conditions; that he never applied public water to a beneficial use; that his certificate was procured by fraud; that, even if he had used water for irrigation, he abandoned the use in 1896, and thus lost the right; that no certificate of appropriation for power was ever issued to him, or such a right acquired; that for more than ten years no beneficial use of public water has been made under either application. The Blue River Power Company, defendant, filed with the state board, January 3, 1912, an application for an appropriation of 100 cubic feet of water a second for the purpose of operating an electric power plant on the site described in plaintiff's applications, including the right to construct at the same place a dam 15 feet high. Rival applicants having asserted the right to use the same public water at the same site, the state board, February 13, 1912, directed plaintiff to appear and show cause why his applications should not be canceled. Upon a trial of the issues the state board canceled both of the applications of plaintiff June 15, 1912, and he appealed to the district court of Seward county, where the facts were fully pleaded. After the parties on both sides had adduced proofs at great length, the trial court found all of the issues in favor of defendants, and upheld the order of the state board. Plaintiff appeals to this court for the relief denied below.

[1] Plaintiff argues that the action of the state board in attempting to cancel his water rights was premature. This proposition is based on the law of 1911, providing that “immediately upon the passage and approval of this act, or as soon as possible, and as often thereafter as shall be necessary, it shall be the duty of the state board to examine into the condition of every water appropriation within this state,” and that, after a notice and an appearance, “the said board shall hear evidence and if it appears that such water appropriation has not been put to a beneficial or useful purpose, or having ceased to be used for such purpose for more than three years, the same shall be declared canceled and annulled.” This statute went into effect April 10, 1911. Laws 1911, c. 153, §§ 17, 37. Plaintiff insists that it operates prospectively only, and permits him to make a beneficial use of water any time within three years from the enactment of the statute, or any time before April 10, 1914; that the board cannot cancel his water rights at an earlier date; that he is a riparian proprietor; that he spent large sums of money in making improvements; and that he acquired vested rights which cannot be taken away without the allowance of a reasonable time after the passage of the act to apply water to beneficial uses.

[2] It seems clear that the Legislature, in passing the act of 1911, conferred upon the state board power to cancel prior applications for appropriations of water without waiting three years. The law was passed with an emergency clause, making it effective upon its approval. The state board was directed to act “immediately,” or “as soon as possible,” and “as often thereafter as shall be necessary.” The power to cancel exists after notice and an opportunity to be heard, “if it appears that such water appropriation has not been put to a beneficial or useful purpose.” The terms of the statute, therefore, make it clear that the power to cancel applies to former cases, where “such water appropriation has not been put to a beneficial or useful purpose,” within the meaning of the law, and that it may be exercised after reasonable notice and an opportunity to be heard. The power to cancel applications for failure of applicants to comply with statutory conditions applies alike to the past and the future, and on familiar principles the act of the Legislature is not for that reason void.

[3] Did the state board in canceling the applications of plaintiff deprive him of vested rights? He was notified by the state board to appear and show cause why his applications should not be canceled. He had an opportunity to make his defense. From an adverse order, he appealed to the district court, where formal pleadings were filed by all of the parties, and where the cause was tried according to established forms of procedure in courts of justice. Plaintiff insists that the action of the state board, if sustained, will deprive him of his investments, of his site for a dam, and interfere with prospecting for minerals. It is true that he expended large amounts of money in constructing a dam, in installing a pump, in conveyingwater from the river to his land, and in drilling for minerals. However, a vested right to the use of public water, for irrigation or power, depends upon compliance with the conditions imposed by statute. The certificate of the state board that plaintiff had acquired an appropriation of water for irrigation did not of itself create or grant such a right. It was, at best, evidence of a water right. Plaintiff made his applications under the act of 1895. Laws 1895, c. 69. Beneficial use of water was a condition of his right to a certificate under that statute, as well as under the act of 1911. His own testimony shows that he made false statements to the state board relating to his compliance with conditions on which a water right for irrigation depends. He did not comply with statutory obligations. His certificate was procured by fraud. It granted no rights. While he pumped water out of the river, and conveyed it to his land, he provided no practical means of distribution, or of application to a “beneficial use,” within the meaning of the irrigation law. A feasible scheme of irrigation, as contemplated by statute, was wanting. Though the evidence is uncontradicted that plaintiff has made no attempt at irrigation since 1896, the finding of the trial court that he never applied any water to a beneficial use for that purpose is manifestly correct. It follows that in this respect he neither acquired nor lost a vested right.

[4] Plaintiff's other application contemplated the construction and maintenance of...