Robinson v. Dawson County Irr. Co.
| Decision Date | 05 February 1943 |
| Docket Number | 31444. |
| Citation | 8 N.W.2d 179,142 Neb. 811 |
| Parties | ROBINSON v. DAWSON COUNTY IRR. CO. et al. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. An irrigation company may properly maintain an action to establish and protect its water rights by enjoining the unlawful diversion of its irrigation water supply, and such a suit may be brought without joining its stockholders or water users as parties.
2. In a suit against a junior appropriator for damages for unlawfully diverting the irrigation waters of a down-stream senior appropriator, it is a complete defense to such suit to establish that the available water passing the junior appropriator's headgate would not, if not diverted or interrupted, reach the headgate of the senior appropriator in a usable quantity.
3. A final judgment by a court of competent jurisdiction on the merits of the case is a bar to a future suit between the same parties or their privies upon the same cause of action.
4. Where evidence of damage to growing crops resulting from the unlawful conversion of storage water is so commingled with evidence of alleged damage resulting from the taking of the natural flow of the stream to which defendant was entitled that the one cannot be separated from the other and the damage caused by each cannot be ascertained, the judgment cannot be said to be supported by the evidence.
W A. Stewart, Jr., and Lyman Stuckey, both of Lexington, and H L. Blackledge, of Kearney, for appellants.
Dryden, Dryden & Jensen, of Kearney, for appellee.
Heard before SIMMONS, C. J., and EBERLY, CARTER, MESSMORE, and YEAGER, JJ.
This suit was instituted against the Dawson County Irrigation Company and the Elmcreek Ditch Company to obtain injunctional relief and to recover a judgment for damages in the sum of $6,026. Plaintiff waived his alleged right to an injunction against both defendants and the case then proceeded as one for damages before a jury. The jury returned a verdict for $3,125 and judgment was entered against the defendants for this amount. Defendants appeal.
Plaintiff filed his petition on January 31, 1941, alleging that he was the owner of 340 acres of land in Buffalo county lying within the Kearney Mutual Irrigation Company, hereinafter referred to as the "irrigation company." By virtue of his lands lying within the irrigation district, plaintiff entered into a contract with the Central Power Company with reference to the delivery and use of irrigation waters from the Central Power Company canal, said Central Power Company being the owner of an appropriation of the waters of the Platte river with a priority date of September 10, 1882. It is further alleged that on December 26, 1935, the irrigation company entered into a contract with the Platte Valley Public Power and Irrigation District whereby the latter was to deliver certain storage water for irrigation purposes to the irrigation company for the use of plaintiff and others similarly situated. The petition then alleges that the Dawson County Irrigation Company procured a restraining order restraining the officers of the state having supervision of the distribution of the natural flow of the waters of the Platte river in accordance with priority rights and of certain storage waters being carried in the river channel pursuant to the irrigation district's contract with the Platte Valley Public Power and Irrigation District, from interfering with the taking of said water by the Dawson County Irrigation Company. Thereupon said water was taken by the Dawson County Irrigation Company and the Elmcreek Ditch Company. The petition alleges that the water so taken belonged to the plaintiff and other irrigators similarly situated within the irrigation district and that such taking was tortious and wrongful. Plaintiff claims damages for injuries to his growing crops resulting from the failure to get the water to which he was entitled that was wrongfully taken by the defendant irrigation companies.
The plaintiff having waived his claim to injunctive relief, the only question for our determination is the correctness of the judgment in the amount of $3,125 for damages alleged to have resulted from the unlawful taking of plaintiff's water during July and August, 1940.
The record shows that the Central Power Company is the legal holder and owner of an appropriation of the waters of the Platte river for 140 second-feet for power purposes and 22 second-feet for irrigation purposes with a priority date of September 10, 1882. The defendants also have appropriations of water in the Platte river for irrigation purposes junior to the rights of the Central Power Company. Plaintiff's right to irrigation water from the natural flow of the Platte river stems from the appropriation held by the Central Power Company.
The record further discloses that on July 4, 1940, the department of roads and irrigation officially notified the Dawson County Irrigation Company that it was then entitled to no part of the natural flow of the Platte river and forbade any diversions from the river other than 125 second-feet of storage water to which it was entitled. Thereupon the Dawson County Irrigation Company filed its petition in the district court for Dawson county, praying for an injunction against A. C. Tilley, Robert H. Willis and A. H. Hamilton, setting forth their capacities as officers of the department of roads and irrigation, and other defendants, in which it was alleged that the Dawson County Irrigation Company had an appropriation from the natural flow of the river; that there was no appropriator of natural flow on the river below its headgate having an appropriation senior to it in point of time except the Central Power Company; that the headgate of the Central Power Company was approximately 35 miles below the headgate of the Dawson County Irrigation Company; that the bed of the river was approximately a mile wide with a dry bed of sand of great depth at the time the petition was filed; that the only reason for ordering the Dawson County Irrigation Company to refrain from taking natural flow waters from the river was to further an attempt to deliver water at the headgate of the Central Power Company, an appropriator senior to it in point of time; that any quantity of water less than 1,000 second-feet flowing in the river at the headgate of the Dawson County Irrigation Company will not reach the headgate of the Central Power Company in usable quantities, but will sink away and be lost in the sand bed of the river and by evaporation, and will be of no beneficial use to any person; that at the time of filing the petition there were but 100 second-feet of water at the headgate of the Dawson County Irrigation Company, that it would be utterly impossible for any of the flow of the river to reach the headgate of the Central Power Company and to deprive the Dawson County Irrigation Company of the water would be to waste said water and cause the same to be of no beneficial use to any one.
On July 5, 1940, a restraining order was issued enjoining the officials of the department of roads and irrigation from in any manner interfering with the headgates of the Dawson County Irrigation Company and from interfering with the diversion of waters flowing in the Platte river into the canal of said defendant irrigation company.
On July 23 1940, a petition in intervention was filed by the Central Power Company, Walter Sheen, Frank Robinson, O. L. Erickson, A. C. Wittera and H. W. Kendall, in which the rights of the Central Power Company in the natural flow of the river are set forth and the further allegation that interveners, other than the Central Power Company, are owners of land which is irrigable and is being irrigated from waters contained in the appropriation of the Central Power Company and are beneficial owners of that part of the water right of the Central Power Company which was granted for irrigation purposes. The petition in intervention denies generally the allegations of the petition, alleges the ownership of their lands subject to irrigation, the nature of the crops growing thereon, and the immediate necessity for irrigation water to be used in maturing the crop. The good faith of the Dawson County Irrigation Company is challenged and the results of the action taken by it are alleged to wrongfully deprive the interveners of their prior rights and to subject them to irreparable damage. Interveners asked that the prayer of the petition be denied, that the restraining order and temporary injunction be dissolved, and for such other relief as may be just and equitable. The defendant officers of the department of roads and irrigation filed their answers alleging the correctness of their closing order of July 4, 1940, and praying for a denial of the relief sought by the Dawson County Irrigation Company. On March 10, 1941, the Dawson County Irrigation Company, as its separate answer to the petition in intervention and as reply to...
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