Osterman v. Central Nebraska Public Power and Irrigation District

• Decision Date: 29 June 1936
• Docket Number: 29780
• Citation: 268 N.W. 334,131 Neb. 356
• Parties: THEODORE OSTERMAN ET AL., APPELLANTS, v. CENTRAL NEBRASKA PUBLIC POWER AND IRRIGATION DISTRICT, APPELLEE
• Court: Nebraska Supreme Court

268 N.W. 334

131 Neb. 356

THEODORE OSTERMAN ET AL., APPELLANTS, v. CENTRAL NEBRASKA PUBLIC POWER AND IRRIGATION DISTRICT, APPELLEE

No. 29780

Supreme Court of Nebraska

June 29, 1936

APPEAL from Department of Roads and Irrigation: Reversed, with directions.

REVERSED.

Syllabus by the Court.

Sections 46-132, 46-501, 46-502, 46-504, 46-507, 46-508, and 46-620 Comp.St.1929, construed together, with reference to the facts in the instant case, and held to be mandatory regulations governing irrigation, which in effect limit the location and construction of irrigation canals and ditches as well as the lands irrigated by the same, to the basin containing the source of the water used, and to require that all unused waters shall be returned to the stream from which diverted; that these principles thus legislatively declared constitute the controlling public policy of the state in the conservation of public waters and in the protection of public interest.

Appeal from Department of Roads and Irrigation.

In the matter of applications of the Central Nebraska Public Power & Irrigation District for the allowance of water rights in the North Platte and Platte rivers. From orders of the Department of Roads and Irrigation, Theodore Osterman and others appeal.

Reversed and remanded with directions.

P. S. Heaton, E. J. Patterson, Cook & Cook, S. S. Diedrichs, L. C. Davis, B. J. Cunningham, Hoagland, Carr & Hoagland, Prince & Prince, Cleary, Suhr & Davis, Matschullat, Matschullat & White and R. H. Beatty, for appellants.

Paul F. Good, Ralph O. Canaday and Stiner & Boslaugh, contra.

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

OPINION

EBERLY, J.

This is an appeal to this court in a special statutory proceeding before the department of roads and irrigation, under the provisions of chapter 81, art. 63, Comp. St. 1929 (section 81-6301 et seq.). The final orders entered by that department, here sought to be reviewed, were orders which granted to the Central Nebraska Public Power and Irrigation District (hereinafter designated as the "Tri-County District") four applications for allowance of water rights on the North Platte and Platte rivers, viz.:

(1) Application No. 2351, for storage of 509,500-acre feet of the waters of the Platte river in two reservoirs to be constructed and known, respectively, as the upper and lower Plum creek reservoirs, situated in the north part of Gosper county, Nebraska; the diversion works under this application are planned to be located in the Platte river in Lincoln county, Nebraska, below the junction of the North and South Platte rivers, and above Brady Island. This will hereafter be referred to as the "Maxwell Diversion."

(2) Application No. 2354, for use of waters diverted at the Maxwell Diversion point, between that point and the mouth of Plum creek at various points for generation of hydro-electric power, and further, after such use, in part to be so disposed of as to be added to waters available for irrigation of the land hereinafter described.

(3) Application No. 2355, for the diversion of direct flow waters at the rate of 3,571 cubic feet per second for irrigation purposes in Gosper, Phelps, Kearney and Adams counties, in Nebraska. For that purpose the diversion points were fixed as Maxwell Diversion, above described, to use the same canal as will be used to carry water into the Plum creek reservoirs; a diversion from the Platte river in Gosper county, Nebraska, in section 2, township 8, range 21, close to the mouth of Plum creek; and a diversion from the Platte river in section 17, township 7, range 51, Kearney county, a short distance below the city of Kearney.

(4) Application No. 2374, for the construction of a channel or "on river" reservoir in the bed of the North Platte river at a point a few miles above Keystone, in Keith county, Nebraska.

The appellants in this case are too numerous to be named in this opinion. With respect to the character of their claims, these parties naturally fall into one of two divisions, viz.: (1) "Appropriators," whose rights arise out of, and are based upon, the state irrigation laws; and (2) "riparians," whose claims are incident to, and arise out of, ownership and possession of lands bordering upon the Platte river or through which it runs. For convenience and brevity, the terms "appropriators" and "riparians," as thus defined, will hereafter be employed in this opinion as denominating the appellants in this suit.

Accepting the suggestion of counsel for appellants, made in argument at the bar of this court, we have concluded to narrow the issues to the single controlling question as to the right of the Tri-County District, under the restrictions of our laws, pursuant to the privileges thus granted and received by it, to annually assemble and concentrate the waters of the Platte river in the amount of 600,000-acre feet, and transport 60 per cent. of same through and across the divide or watershed which separates the Platte river system from the basins of the Blue and Republican rivers (both tributaries of the Kansas river and constituting a part of its system), and therewith irrigate lands situated wholly outside the Platte river valley and beyond the watershed thereof.

This procedure we adopt because of the diversity of interests, and parties representing the same, as disclosed by the record in this case, and is expressly without prejudice to the rights of all parties as to their several contentions made in this action, but not now expressly determined.

The uncontradicted evidence of the chief engineer, testifying as to the disposition of the waters to be controlled, accumulated, and applied in power and irrigation, by and through the water privileges covered by the four applications here in suit, in part, is as follows:

"Q. How much in the original plans and as revised, how many acres do you plan to irrigate? A. 500,000. Q. And what part of that acreage is north of the divide south of the Platte river? A. Approximately 60 per cent. south of what we call the ridge and 40 per cent. north. Q. That would be about 300,000 acres on the south side and 200,000 acres on the north side of the ridge? A. Yes, sir. Q. And how much water do you propose in those plans, acre feet of water, do you propose to take each year from the Platte river? A. We figure on applying one-acre foot per acre on the land. Q. So you will take 500,000-acre feet of water? A. Take a little more than that because there will be some seepage and evaporation losses. Q. Do you intend to apply the same one acre foot on the land on the north side that you do to the land on the south side of the divide? A. Yes, sir. Q. And you feel that will be sufficient south side of the divide? A. Yes, sir; that matter has been gone into very thoroughly and reports are all on file. * * * Q. Just describe generally what the arrangement is in reference to the operation of the reservoirs and power plants. A. First, have a diversion east of North Platte, carry it down Plum creek and dump approximately 80 feet there and have a spill-way back into the Platte river where we can take all the water down the canal or can spill part into the river and carry that down Midway canyon, dam that and have a tunnel to carry the water over to Plum creek and north to Elwood, have a dam approximately 115 feet high and with the excavation gives us 140 drop for the power plant and below that have a second reservoir with a dam of about 115 feet high and a drop of 140 feet and that water is turned back into Plum creek and carried on down to our canals for irrigation and with a cross-over structure we can turn it back into the river. * * * Q. What is your estimate of the amount of water you are going to take out of the Platte river? A. For irrigation? Q. Yes? A. For irrigation it will run about one and three tenths acre foot per acre on the land and if we put in the Plum creek reservoir we will have an additional loss for evaporation out of that. * * * Q. Then instead of 500,000 you will take out about 700,000-acre feet? A. Anyway 600,000-acre feet. * * * Q. Of this 600,000 that you propose to take out of the Platte river, how much do you propose to take over onto the south divide between the Republican and the Platte? A. Under irrigation about 60 per cent. south of the divide, at least more than half. * * * Q. * * * That will mean practically 360 or 400,000-acre feet taken out of the Platte valley for good, wouldn't it? A. Yes; I would consider it that way."

In view of this testimony, as outlined above, the "canals" to be constructed in the accomplishment of the ultimate object of this project, whether primarily devoted to the development of power, for storage, or for the application of the waters to land by direct irrigation, must be deemed "irrigation canals," as defined by our statute. Comp. St. 1929, sec. 46-507. This section provides: "Any canal constructed for the purpose of developing water power, or any other useful purpose, and from which water can be taken for irrigation, is hereby declared to be an 'irrigation canal' and all laws relating to irrigation canals shall be deemed applicable thereto."

As a preliminary question, the right to relief by the "riparians" is, in effect, challenged by the Tri-County District, substantially for the reason that the Platte river in Nebraska being an "interstate stream," along the banks of which meander lines have been run by the federal government in its survey of the public lands, this precludes the attachment or existence of riparian rights in the waters thereof. Obviously a person may not be heard to complain, either in a court of law or before an administrative tribunal, as to the infringement of a right which in fact he does not...