Northport Irrigation District v. Farmers Irrigation District

• Decision Date: 29 November 1933
• Docket Number: 28845
• Citation: 251 N.W. 174,125 Neb. 607
• Parties: NORTHPORT IRRIGATION DISTRICT, APPELLANT, v. FARMERS IRRIGATION DISTRICT ET AL., APPELLEES
• Court: Nebraska Supreme Court

251 N.W. 174

125 Neb. 607

NORTHPORT IRRIGATION DISTRICT, APPELLANT, v. FARMERS IRRIGATION DISTRICT ET AL., APPELLEES

No. 28845

Supreme Court of Nebraska

November 29, 1933

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

AFFIRMED.

Syllabus by the Court.

1. The rule that, under the Code, pleadings should be construed liberally applies only to ordinary actions. In all cases of application for any extraordinary writ, the petition will receive a strict construction.

2. An order of the district court requiring a petition to be made more definite and certain will be sustained, unless it clearly appears that the court abused its discretion to plaintiff's prejudice.

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

Action by the Northport Irrigation District, a public corporation against the Farmers' Irrigation District, a public corporation. From a judgment dismissing the action, plaintiff appeals.

Affirmed.

F. E. Williams, for appellant.

Neighbors & Coulter, contra.

Heard before GOSS, C. J., ROSE and PAINE, JJ., and BEGLEY and HORTH, District Judges.

OPINION

BEGLEY, District Judge.

This is an appeal from an action of the district court for Scotts Bluff county in sustaining a motion requiring the plaintiff's petition to be made more definite and certain. The plaintiff elected to stand on its petition, refused to plead further, and on motion of the defendants the action was dismissed, from which the plaintiff has appealed.

On January 10, 1933, the appellant filed its second amended petition in this action in the district court, alleging that the plaintiff and defendant district are duly organized irrigation districts and that defendant district owns, maintains and operates a canal with diversion dam, intake, sluice-way and other structures, necessary for diverting water from the North Platte river in Scotts Bluff county, Nebraska; that defendant district entered into a contract with the United States for the carriage of water through its said canal to Red Willow creek in Morrill county. Article 7 of said contract provides:

"The United States and its assigns agrees to pay annually, beginning with the first year such carrying capacity is used, to the district on or about July fifteenth of each year for the year then current, as an operation and maintenance charge for the carriage of water through the main canal of said district, one-fifth (1/5th) part of such amounts as shall be expended each year by the said district for operation and maintenance of its works used in diverting and carrying the water of the United States or its assigns. The said operation and maintenance charges shall be estimated in advance by the board of directors of the district and shall include the estimated cost of all replacements, betterments and renewals, necessary in connection with the dam, intake, sluice-way, culverts and main canal of the district used in carrying the water of the United States aforesaid, together with any deficit arising from insufficient estimates of prior years, and less any surplus arising from over estimates of prior years. The district will keep an accurate account of all such sums so expended, rendering statement and vouchers therefor. The United States and its assigns shall not be liable for any such operation and maintenance charge prior to the season in which it avails itself of the opportunity to have water carried in the district's works aforesaid."

That thereafter said contract was duly assigned to the plaintiff by the United States and defendant has recognized plaintiff's rights as assignee; that the plaintiff has duly performed all conditions on its part in said contract to be performed; that it is plaintiff's duty to supply water to its district and under said contract it is entitled to supply water through said canal and it has no other means of supply; that in the month of August, 1932, defendant irrigation district arbitrarily, without reason, threatened to shut down the head-gate of plaintiff's canal at the point of intake of said Red Willow creek and threatened to divert said water from the said canal and to deprive plaintiff's lands or crops growing thereon from the use of said water for irrigation purposes, whereby said lands and crops will be greatly injured and depreciated in value, by reason of which they will suffer great and irreparable damage and that plaintiff has no adequate remedy at law. The plaintiff therefore prayed for an injunction restraining the defendants, their agents and employees from carrying out said threatened acts and depriving the plaintiff of said water as provided in exhibit A, being the contract with the United States government, and for such other and further relief as may seem just and equitable. A temporary injunction was granted by the court.

The defendants filed...