Water Appropriation No. 442A, In re

• Decision Date: 11 December 1981
• Docket Number: 43740,43738,43739,Nos. 43737,s. 43737
• Citation: 313 N.W.2d 271,210 Neb. 161
• Parties: In re WATER APPROPRIATION NO. 442A. Carl WILKINS v. STATE DEPARTMENT OF WATER RESOURCES. In re WATER APPROPRIATION NO. 461. Carl WILKINS v. STATE DEPARTMENT OF WATER RESOURCES. In re WATER APPROPRIATION NO. 462. Carl WILKINS et al. v. STATE DEPARTMENT OF WATER RESOURCES. In re WATER APPROPRIATION NO. 485. Bruce ISKE v. STATE DEPARTMENT OF WATER RESOURCES.
• Court: Nebraska Supreme Court

Page 271

313 N.W.2d 271

210 Neb. 161

In re WATER APPROPRIATION NO. 442A.

Carl WILKINS v. STATE DEPARTMENT OF WATER RESOURCES.

In re WATER APPROPRIATION NO. 461.

Carl WILKINS v. STATE DEPARTMENT OF WATER RESOURCES.

In re WATER APPROPRIATION NO. 462.

Carl WILKINS et al. v. STATE DEPARTMENT OF WATER RESOURCES.

In re WATER APPROPRIATION NO. 485.

Bruce ISKE v. STATE DEPARTMENT OF WATER RESOURCES.

Nos. 43737, 43738, 43739, 43740.

Supreme Court of Nebraska.

Dec. 11, 1981.

Syllabus by the Court

1. Waters: Administrative Agencies. The Department of Water Resources is expressly authorized by statute, after notice and hearing, to forfeit a water right where it appears that the water appropriation has not been used for some beneficial or useful purpose or, having been so used at one time, has ceased to be used for such purpose for more than 3 years.

2. Waters. Where it appears that irrigation water has not been applied to lands described in an adjudicated appropriation for the statutory period of 3 years, such nonuse will result in the loss of the right, although the right is one that is termed a vested, adjudicated right.

3. Constitutional Law: Courts. One cannot be said to be deprived of his property without due process of law so long as he has recourse to the courts for the protection of his rights.

4. Waters: Administrative Agencies: Proof. In a proceeding to cancel a water appropriation pursuant to Neb.Rev.Stat. § 46-229.02 (Reissue 1978), the initial burden of proof is upon the Department of Water Resources. This burden is met upon the filing of the verified report of the water commissioner or engineers of the Department pursuant to § 46-229.04. Thereafter, the burden is upon the appropriator to show cause why the appropriation should not be canceled.

Steven C. Smith of Van Steenberg, Brower, Chaloupka, Mullin & Holyoke, Gering, for appellant.

Paul L. Douglas, Atty. Gen. and G. Roderic Anderson, Asst. Atty. Gen., Lincoln, for appellee.

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

KRIVOSHA, Chief Justice.

The four instant consolidated appeals involve water appropriation forfeiture proceedings brought pursuant to Neb.Rev.Stat. §§ 46-229.01 to 46-229.05 (Reissue 1978) held before the Nebraska Department of Water Resources (Department). The proceedings involve separate water appropriations on the Niobrara River identified as D-442A, D-461, D-462, and D-485. The cases were consolidated for briefing and argument by order of this court. After hearing before the Department, the Department found that with regard to D-442A beneficial use of water had not been made for more than 3 years on part of the land under D-442A, and accordingly canceled the water appropriation on 360.6 acres, amounting to 4.26 cubic feet per second (c.f.s.). The Department further found that 244.7 acres under D-442A had been irrigated in the past 3 years, and therefore allowed 2.88 c.f.s. under D-442A to remain in full force and effect.

With regard to D-461, the Department found that beneficial use of water had not been made for more than 3 years on part of the land under D-461, and accordingly canceled the water appropriation on 253 acres, amounting to 3.61 c.f.s. The Department further found that 37 acres under D-461 had been irrigated in the past 3 years, and therefore allowed .53 c.f.s. under D-461 to remain in full force and effect.

With regard to D-462, the Department found that beneficial use of water had not been made for more than 3 years on part of the land under D-462, and accordingly canceled the water appropriation on 229 acres, amounting to 3.27 c.f.s. The Department further found that 26 acres under D-462 had been irrigated in the past 3 years, and therefore allowed .37 c.f.s. under D-462 to remain in full force and effect.

The Department finally found that with regard to D-485 beneficial use of water had not been made for more than 3 years on any portion of the appropriation under D-485, and accordingly canceled the entire appropriation on about 200 acres, amounting to 2.86 c.f.s.

The landowners have appealed the action of the Department to this court and maintain that the Department erred in failing to recognize that the water appropriations involved herein were vested prior to April 4, 1895, and therefore the statutory forfeiture proceedings provided for in § 46-229.02 do not apply. They further argue that they were denied their rights to due process of law in that they were not afforded a hearing before an impartial tribunal at which time they would be permitted a full evidentiary hearing.

They further maintain that the Department erred in failing to recognize that certain factors beyond the control of the appropriators constituted valid excuses for nonuse. We have now examined the entire record and conclude that the action of the Department was in all respects correct and its order should be in all respects affirmed.

We could set out the facts of these matters in detail. However, the determinations of the issues presented to the court are not dependent upon our recitation of the facts, and for that reason we will not unduly lengthen this opinion by doing so. Suffice it to say that the record discloses a hearing was held by the Department in Chadron, Nebraska, on May 14, 1980, on all four cases. The appellants elected to appear pro se, which may in part account for the difficulty which they later encountered. The record does disclose that water has not been taken for portions of the appropriation for the 3-year period, as found by the Department. Appellants maintain that they are excused for their nonuse. Unfortunately, however, they did not introduce evidence sufficient to satisfy their burden in that regard. The reports of the Department establish the fact that water was not taken for more than 3 years. The appropriators argue that they are excused for not taking the water because of various difficulties existing in either the river or the canals. The evidence, such as it is, appears to establish that the inability of the appropriators to take water was due to each appropriator's failure to repair the conditions which existed in the river or the canals adjacent to his property and which prevented the appropriators from taking the water. The failure of the appropriators to make the necessary repairs, however, when by doing so within a reasonable time they could have used the water available, does not constitute nonuse of such type as to excuse their failure to use the water during the statutory period. The evidence with regard to "nonuse" in these cases is insufficient to establish the defense as contended by the appropriators.

We therefore turn to the legal arguments raised by the appropriators. Appellants' first contention is that the forfeiture statute does not apply to them because each of the individuals had vested rights in the water appropriations prior to April 4, 1895, the effective date of the water act in question. Appellants acknowledge that we have previously held, in the case of State v. Birdwood Irrigation District, 154 Neb. 52, 46 N.W.2d 884 (1951), that the statutory forfeiture provisions were applicable to an appropriation with an adjudicated priority date of October 21, 1893. Appellants maintain, however, that our decision in Birdwood was in error and ought to be overruled. We have reexamined our decision in Birdwood in light of the arguments raised by appellants and conclude that our decision in that case was correct and should not be overruled. We said in State v. Birdwood Irrigation District, supra at 56-57, 46 N.W.2d at 888: "The department is expressly authorized by statute, after notice and hearing, to forfeit a water right where it appears that the water appropriation has not been used for some beneficial or useful purpose, or having been so used at one time has ceased to be used for such purpose for more than three years. § 46-229.02, R.S.Supp., 1949. The constitutionality of the foregoing statute was upheld by this court in Kersenbrock v. Boyes, 95 Neb. 407, 145 N.W. 837, and Dawson County Irrigation Co. v. McMullen, 120 Neb. 245, 231 N.W. 840. In the Kersenbrock case it was held also that the act was not invalid because it applies to both past and future appropriations. We deem these propositions as settled in this state. ...