State v. Delaware-Hickman Ditch Company
| Decision Date | 15 October 1926 |
| Docket Number | 24377 |
| Citation | 210 N.W. 279,114 Neb. 806 |
| Parties | STATE OF NEBRASKA, APPELLANT, v. DELAWARE-HICKMAN DITCH COMPANY, APPELLEE |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Dundy county: CHARLES E. ELDRED JUDGE. Affirmed.
AFFIRMED.
O. S Spillman, Attorney General, Lee Basye, and Sullivan, Wright & Thummel, for appellant.
Scott & Scott and McDonald & Irwin, contra.
Heard before ROSE, DEAN, DAY, GOOD, THOMPSON and EBERLY, JJ.
The Delaware-Hickman Ditch Company, of Dundy county, hereinafter called the company, and its officers were cited under section 8428, Comp. St. 1922, to appear at Bridgeport, before the department of public works, there to show cause why its appropriation for a certain quantity of water for irrigation purposes from the Republican river, in Dundy county, Nebraska, should not be canceled and forfeited, on the alleged ground of nonuser.
Defendants own and occupy 1,280 acres of land under the ditch, and in their joint answer it is alleged, in substance, that for many years they used the water pursuant to the appropriation, in fact, ever since 1895, when the grant was obtained, and that, shortly thereafter, they constructed the headgate, main ditch and laterals, and the irrigation works generally, and appropriated such water as was needed to irrigate the above mentioned lands. And they alleged that practically every year large sums of money were expended by them for the construction, upkeep and maintenance of the ditch and to keep it and the works generally in repair. It is also alleged that the soil through which the ditch runs is a light, sandy, porous loam and is therefore "subject to seepage," and much of the land under the ditch has received great benefit by reason of subirrigation, so that it did not at all times require the application of surface irrigation, unless the rainfall was deficient, and that at such times, when irrigation was deemed expedient and appeared to be necessary, the land was regularly irrigated through and by means of the ditch and the works generally. It is alleged, too, that, during all of the time since the appropriation of water involved herein, the headgate, main ditch, laterals, drops, spillway, and the works generally, have been kept in a reasonably efficient and operative condition and capable of furnishing the water for which the project was constructed. And defendants insist that they have in no way, either by word or act, abandoned the right to use the full appropriation, and have never entertained any intention to abandon any right acquired through the appropriation.
In support of defendants' material allegations there is evidence tending to prove that, during a part of the time involved in this inquiry, there was no water available in the Republican river, so that, of course, irrigation from that source temporarily ceased; but, when needed, it was regularly turned into the ditch. A ditch foreman was employed each year, the evidence shows, and from $ 250...
To continue reading
Request your trial