State ex rel. Blome v. Bridgeport Irrigation Dist., 42352

• Decision Date: 18 December 1979
• Docket Number: No. 42352,42352
• Citation: 205 Neb. 97,286 N.W.2d 426
• Parties: STATE of Nebraska ex rel. Rollin E. BLOME et al., Appellees, v. BRIDGEPORT IRRIGATION DISTRICT et al., Appellants.
• Court: Nebraska Supreme Court

Page 426

286 N.W.2d 426

205 Neb. 97

STATE of Nebraska ex rel. Rollin E. BLOME et al., Appellees, v. BRIDGEPORT IRRIGATION DISTRICT et al., Appellants.

No. 42352.

Supreme Court of Nebraska.

Dec. 18, 1979.

Syllabus by the Court

1. Mandamus. To warrant the issue of peremptory writ of mandamus to compel the performance of a legal duty to act: (1) The duty must be imposed by law; (2) the duty must still exist at the time the writ is applied for; and (3) the duty to act must be clear.

2. Waters: Property. The principal purpose for the organization of an irrigation district is to furnish water for irrigation to all the landowners within the district upon fair and equitable terms and conditions.

3. Waters: Property. All water distributed for irrigation purposes shall attach to and follow the tract of land to which it is applied. An irrigation district has a duty to procure the necessary right-of-way and deliver water on fair and equitable terms and conditions to each tract of land subject to assessment.

4. Waters: Administrative Law: Jurisdiction. The Department of Water Resources has original and exclusive jurisdiction to hear and adjudicate all matters pertaining to water rights for irrigation and other purposes, including jurisdiction to cancel and terminate such rights.

5. Waters: Property: Statutes. An irrigation district has no power to cancel or terminate the water rights of a landowner, nor can it suspend delivery of water except for nonpayment of taxes and assessments as provided by statute and the by-laws of the district.

6. Waters: Property. An irrigation district has a duty to deliver water to each tract of land subject to assessment, and the determination of whether one or more than one point of delivery to a tract is required must be made on a case-by-case basis. The point or points of water delivery reasonably required on any given tract of land must be determined upon the basis of what is just and equitable under the facts and circumstances of each case.

7. Mandamus: Appeal and Error. An action in mandamus is a law action in which a jury trial on issues of fact is not demandable as a matter of right, and the finding of the District Court will not be disturbed by this court on appeal unless clearly wrong.

Robert J. Bulger of Bulger & Jensen, Bridgeport, for appellants.

Wright & Simmons and John A. Selzer, Scottsbluff, for appellees.

Heard before KRIVOSHA, C. J., and BOSLAUGH, McCOWN, CLINTON, BRODKEY, WHITE and HASTINGS, JJ.

McCOWN, Justice.

In this action the plaintiffs sought a peremptory writ of mandamus to require defendant irrigation district to take the necessary action to deliver water to the highest point on plaintiffs' land so as to allow them to irrigate all the irrigable land in the acreage, some of which cannot now be irrigated from the present point of delivery. The District Court granted the writ and the irrigation district has appealed.

The land involved is a quarter section of farmland in Morrill County, Nebraska, except for a small triangular tract in the northeast corner. The land consists of approximately 146 acres and is included in the defendant Bridgeport Irrigation District. Irrigation district taxes have been assessed and paid at all times relevant here.

Plaintiff Rollin E. Blome's father purchased the land in 1946. Since the death of his father in 1950, the plaintiff, Rollin E. Blome, has farmed the land by himself or with other members of his family, and is now the individual record owner of the land. In 1946 the land was not irrigated, sand had blown up in piles, and most of the land showed the effects of severe wind erosion. At some former time two irrigation ditches connected the land on its southern boundary to an irrigation lateral of the defendant district designated as lateral No. 15. The easterly irrigation ditch entered the Blome land through a siphon under the county road at a point approximately in the center of the south boundary of the land. The westerly irrigation ditch and siphon entered the land approximately 600 feet to the west. The two ditches connected to lateral No. 15 approximately 600 feet south of the center of the south boundary of plaintiffs' land. Immediately to the north of the siphon on the east ditch on the south boundary of plaintiffs' land is the present high point of the land after leveling. The high point prior to leveling was near the southwest corner of the land.

Between 1950 and 1961 the land was farmed by dryland summer fallow methods or placed in the soil bank. In 1961 Blome began making plans to bring the land back into production, including plans for leveling the land a little at a time as it could be afforded. Prior to beginning the leveling, Blome consulted the defendant irrigation district about delivery of water to the land and was told that the district could deliver water through the siphons on the southern boundary of the Blome land, and that it would deliver water to those points. Blome then had a survey made of the west 100 acres of the land to determine how it should be leveled so as to allow it to be irrigated from the two points on the southern boundary of the land. The survey did not extend to the east portion of the land at that time, since it was then thought to be too rough.

The leveling program began in 1962 when 55 acres were leveled on the west side of the land and approximately 25 more acres were leveled in 1967. In that year Blome drilled a well and installed a pump at about the center of the south boundary of the land. The pump was originally installed for emergency use but Blome began use of the pump for irrigation purposes in 1968 when irrigation was commenced. For 2 days in 1968 plaintiff also took irrigation water from the box in lateral No. 15 through the east ditch and siphon that entered the Blome land at the center of the south boundary. That effort was abandoned when Blome could not hold the water in the ditches on his own land, although he had no trouble with the ditch or the siphon to the south of his land. Blome leveled another 39 acres to the east in 1969, but did not level the remainder of the eastern portion of the land until 1973.

In 1970 Blome met with two directors of the irrigation district and requested that water be delivered to his land at a point near the southeast corner from lateral No. 16 of the irrigation district which ran north and south along the east side of the land. Blome testified that he told the directors at the time of the request that he wanted the water for the east portion of his land but did not want to compromise his position on having water delivered at the center of the south boundary also. He testified that the directors made no objection to the request, although one of the directors testified that nothing was said about a delivery point on the south boundary.

The defendant irrigation district has delivered water from lateral No. 16 at or near the southeast corner of the land since 1970. In 1971 Blome built a concrete ditch along the south boundary of the land from the southeast corner to approximately the center of the south boundary. That point was approximately 50 feet east of, and approximately 2 feet lower than, the high point of the land. In 1973 the remainder of the eastern portion of the land was leveled. Since that time all the eastern portion of the land has been irrigated with water delivered at the southeast corner of the land from lateral No. 16 through the concrete ditch along the south border.

Because of the elevation of the land Blome could not deliver water from the southeast corner any further west along the south line. To water any of the western portion of the land with water received at the southeast corner, Blome would have to build a curved ditch to the northwest from the west end of the concrete ditch on the south boundary. That method would leave approximately 12 acres in the southwest corner of the land which could not be irrigated from water delivered at the southeast corner.

Since 1968 the westerly portion of the Blome land has been irrigated from the irrigation well and pump installed by Blome. Blome constructed a concrete ditch along the west boundary of the land and pumped the well water to the south end of the concrete ditch to irrigate the western portion of the land.

In general the land leveling provides for the flow of irrigation water from west to east on the westerly portion of the land and from south to north on the easterly portion of the land with distribution designed to be made from the west and south boundaries.

At some time after the completion of the land leveling Blome requested the defendant irrigation district to deliver water to the high point at the center of the south boundary of the land from the box on lateral No. 15, 600 feet to the south. The district refused to procure a right-of-way for a ditch across that 600 feet and to deliver water to the plaintiff at that point.

Sometime prior to August 1976, the plaintiffs here filed a quiet title action against the landowners to...