Mitchell Drainage District v. Farmers Irrigation District

• Court: Nebraska Supreme Court
• Writing for the Court: LIGHTNER, District Judge.
• Citation: Mitchell Drainage District v. Farmers Irrigation District, 256 N.W. 15, 127 Neb. 484 (Neb. 1934)
• Decision Date: 29 June 1934
• Docket Number: 28850
• Parties: MITCHELL DRAINAGE DISTRICT, APPELLANT, v. FARMERS IRRIGATION DISTRICT ET AL., APPELLEES

256 N.W. 15

127 Neb. 484

MITCHELL DRAINAGE DISTRICT, APPELLANT, v. FARMERS IRRIGATION DISTRICT ET AL., APPELLEES

No. 28850

Supreme Court of Nebraska

June 29, 1934

APPEAL from the district court for Scotts Bluff county: EDWARD F CARTER, JUDGE. Affirmed.

AFFIRMED.

Syllabus by the Court.

1. Fact that defendant acquired by prescription right to intercept and use certain waters did not vest any reciprocal rights in plaintiff to compel defendant to continue to intercept such waters under circumstances in this case.

2. Defendant irrigation ditch intercepted and used certain waters for more than prescriptive period. Plaintiff constructed its drainage ditch in the regular course of such waters but without reference to them. However, it was not shown that the ditch would have been any different if plaintiff had taken said waters into account. At the place where the irrigation ditch crossed the natural course of the waters defendant constructed a needlegate and overflow by which they could be carried through the irrigation ditch. Held, that defendant has not lost the right to open the needle-gate and permit the waters to flow through into plaintiff's drainage district.

3. Held, that defendant under the facts in this case has not lost the right to carry the waters through its irrigation ditch into plaintiff's drainage ditch on account of acquiescence, dedication or estoppel.

4. Acquisition of right to divert and use waters of a draw by irrigation district carries no reciprocal right to continue main tenance of such artificial condition for benefit of lower owners though maintained for the prescriptive period.

5. Lower owners improving their property in reliance on artificial conditions created by diversion and use of waters of stream acquired no reciprocal right to continuance thereof.

6. Irrigation district could discontinue diversion of said waters at any time and restore them to their original course provided its action was not capricious, wanton or irrational.

7. Upper riparian owner constructing and maintaining artificial structure affecting flow of waters for temporary purpose advantageous to it is not obligated by lapse of time to maintain structure and conditions produced thereby though incidentally benefiting lower owners.

Appeal from District Court, Scotts Bluff County; Carter, Judge.

Action by the Mitchell Drainage District against the Farmers' Irrigation District and others. From an adverse judgment, plaintiff appeals.

Affirmed.

Morrow & Morrow, for appellant.

Neighbors & Coulter, contra.

Heard before ROSE and PAINE, JJ., and LIGHTNER, REDICK and THOMSEN, District Judges.

OPINION

LIGHTNER, District Judge.

Injunction to prevent defendant from permitting the waters from Wet Spottedtail Draw to pass through its irrigation canal and into plaintiff's drainage district. The finding was for defendant and plaintiff has appealed.

The appellant will be referred to in this opinion as plaintiff, and the appellees, who are the irrigation district and its officers, as defendant. The controversy pertains to water conditions in and about Mitchell in Scotts Bluff county.

For many years defendant company has intercepted the water from Wet Spottedtail Draw and carried it eastward where it was used for irrigation purposes. Prior to the establishment of irrigation, Wet Spottedtail Draw was a dry slough most of the year. After the establishment of irrigation, and particularly after the construction of the Pathfinder Irrigation Ditch, water came therefrom mostly in the form of seepage and gathered in the Wet Spottedtail Draw and this is the water in controversy in this case. The Pathfinder Irrigation Ditch is about four miles north of defendant's irrigation ditch. The two irrigation ditches were constructed about the same time, 1906 or 1907. The diversion of the Wet Spottedtail water did not prevent seepage waters from coming down into Mitchell and as a result of such waters plaintiff's drainage ditch was organized in 1913 to take care of such seepage conditions. Plaintiff contends that neither when the ditch was constructed nor afterwards when it was improved on several occasions did it take into account the waters that were coming down in Wet Spottedtail Draw; that it relied on defendant continuing to intercept and carry said waters to the east. However, a spillway was put in when the irrigation canal was first built directly opposite Wet Spottedtail Draw, and just after the completion of the drainage ditches in the spring of 1913, that is, in the fall of 1914, the irrigation district made a needle-gate construction in the south bank of its canal just opposite where Wet Spottedtail Draw comes into the same by which said waters could be let through and continued on down into plaintiff's drainage district. This last was not used except for a few days after it was first constructed and again a few days in 1925 or 1926, after which it was closed due to protests from the plaintiff. The needle-gate was again opened in the fall of 1932 which led to the filing of this suit. Plaintiff obtained a temporary injunction, which on the final hearing was dissolved and a general finding was entered in favor of the defendant.

Plaintiff bases its right to relief upon three grounds: (1) That defendant is estopped by changed conditions and long lapse of time to carry the water through its irrigation canal into plaintiff's drainage district. (2) The defendant irrigation district has obtained a prescriptive right to the water as against the plaintiff and the plaintiff has obtained a reciprocal right to have the water continued as it had been flowing during the prescriptive period. (3) That the new watercourse has by the lapse of time become the natural course of the stream and the right to have the stream continue in its present course has become absolute. Closely allied to the last, perhaps part of it, is the claim that these are new waters developed by irrigation, never had any course except that established for them by defendant by being taken into its canal and carried eastward in its irrigation canal. A more complete statement of the facts as found by the district court supplementing what has just been said follows:

"The testimony in this case shows that the Farmers Irrigation District canal, at the point involved in this action, was constructed about 1907, at which time the banks of said canal, where it crossed Wet Spottedtail Draw, were solid earthen works. At this time there was no water flowing in Wet Spottedtail, nor was there a running stream at that point until several years later. In 1911 or 1912 seepage water began to appear in Wet Spottedtail both above and below the Farmers Irrigation District canal. This seepage condition continued in a progressive manner until the lands now within the Mitchell Drainage District were imperiled. As a result the plaintiff drainage district was formed in 1912, the whole of it being below but extending close to the Farmers Irrigation District canal in Wet Spottedtail Draw. In 1913 the drainage ditch as first constructed was completed, it being what was generally termed a plow ditch. In the fall of 1913 or in the spring of 1914, a concrete structure was placed in the south bank of the Farmers Irrigation District canal which would permit the water from upper Wet Spottedtail to pass through the Farmers Irrigation District canal and into plaintiff's drainage ditch. In the meantime a live stream of water had commenced to flow in Wet Spottedtail Draw and probably had been so running since 1912 or 1913, which water was permitted or allowed to flow through the north bank of the Farmers Irrigation District canal into said canal. During the irrigation season said water was impounded and used for irrigation purposes and in the 'off season' it was carried down the Farmers Irrigation District canal a quarter of a mile and sluiced back to the river. The gate in the south bank of the Farmers Irrigation District canal, according to the evidence, was kept closed by the defendant district until 1925 when it was opened and the water coming down Wet Spottedtail Draw from the irrigated lands above the Farmers Irrigation District canal was permitted to go on through said Farmers Irrigation District canal and into the drainage ditch of the plaintiff. The evidence shows that plaintiff's board of directors complained to the manager of the Farmers Irrigation District about the damage the additional water was causing and that said gate was immediately closed and not again opened until the fall of 1932, at which time this suit was commenced praying for an injunction.

"The evidence clearly shows that the water complained of arises within the Pathfinder Irrigation District, which district is not a party to this action. * * * The drainage ditch built by the plaintiff is * * * in the natural water-course of the Wet Spottedtail watershed. * * * Considerable testimony was produced in an attempt to show whether or not the flowing of this water into the Mitchell drain injured the plaintiff. While the evidence was very conflicting, it is the opinion of the court that some damage resulted from the turning of this water into the Mitchell drainage ditch. * * *

"The Farmers Irrigation District * * * has not obtained nor does it claim any right by prescription against the Mitchell Drainage District, the plaintiff herein. The evidence fails to show where the defendant has claimed any right adverse to the plaintiff upon which a reciprocal right could be predicated. * * *

"Plaintiff has not expended money or made improvements in the belief that a permanent, artificial watercourse had been constructed to carry the water of Wet Spottedtail. Plaintiff contends that plaintiff's drainage ditch was constructed under the belief...