Pursuant to a resolution passed by the house of representatives on March 17, 1919, authorizing this suit, the Commonwealth Power Company, hereinafter designated the plaintiff, brought this action against the state in the district court for Lancaster county, and recovered a judgment for the principal sum of $2,435. The state has appealed. The plaintiff has filed a cross-appeal claiming interest on the money during the time it has been in the hands of the state.
It appears that in May, 1912, and prior thereto, the secretary of the state board of irrigation, highways and drainage (who is the state engineer) made a personal survey of the Loup river and its tributaries, including Beaver creek, for the purpose of ascertaining the volume of water in said streams subject to appropriation. A report of this survey was duly filed with the board. The secretary, by reason of his surveys and records, was' familiar with the volume of the waters in said streams, the appropriations heretofore made, and the amount of water therein subject-to appropriation for water and power purposes.
On September 30, 1912, the plaintiff inquired of the said secretary whether there was unappropriated water for power purposes in the Loup river and Beaver creek, at points of diversion designated, and was informed that there were 3,800 ■ second feet subject to appropriation.
A resolution of the house of representatives, acting under the provisions of section 1177, Rev. St. 1913, authorized the plaintiff to bring this suit upon the cause of action set forth in the petition, and also directed the attorney general on behalf of the state to defend the suit. At the outset it is important to determine whether the case is to be governed by the ordinary rules of law or upon broader principles of equity and good conscience. A careful examination of the sections of the statute (Rev. St. 1913, sec. 1177 et seq.) convinces us that in actions of this character it was intended that the
‘ ‘ The court in which such action may be brought shall hear and determine the matter upon the testimony according to justice and right, as upon the amicable settlement of a controversy, and shall render award and judgment against the claimant, or the state, as upon the testimony, right and justice may require.”
The purpose of these sections is to take such cases out of the ordinary rules of law and to place their determination upon a much higher and broader ground, to make them triable to the court rather than a jury, and to make justice and right, as viewed by the court, the basis of its decision. With this rule as our guide, how should this case be decided? The state has in its treasury $2,435 paid by the plaintiff upon the belief, and upon the assurance of the secretary of the board, that there was water in the streams subject to appropriation. This statement of the secretary was undoubtedly made in the utmost good faith, but nevertheless it was erroneous and misleading, and the plaintiff in relying upon its . truthfulness has suffered a wrong. It was a mistake of fact upon which both parties relied. No one believes the secretary would have taken this money knowing there was no water which plaintiff could take under its applications. The real thing of value which the plaintiff sought was the right to divert the water. It is a well-
One of the contentions urged by the state is that the plaintiff’s claim is barred by the statute of limitations. It is a sufficient answer to this argument to say that actions of this character cannot be prosecuted against the state without leave .of the legislature, or one branch thereof, and that the statute of limitations does not begin to run against such a claim until leave to sue the state has been given. Lancaster County v. State (on rehearing), 74 Neb. 215. It is also urged that the ease of Commonwealth Power Co. v. State Board of Irrigation, Highways and Drainage, 94 Neb. 613, is res judicata of the question presented here. We do not so understand that ease. The issue in that case was whether the plaintiff was entitled to have its applications for water granted, claiming that application No. 709 was inferior to plaintiff’s application. The court held against the plaintiff. There was no attempt in that suit to recover the money paid. Such a contention would have been entirely inconsistent with its claim for appropriation of the water. The subject-matter in that case and the
By the plaintiff’s cross-appeal it claims interest upon the amount of money during the time such money was in the hands of the state. During a portion of this time, however, the money was voluntarily left with the state authorities while the plaintiff was seeking by appeal to have priority rights over claim No. '709, and during that period it was not claiming a return of its money.' So far as the record discloses, the first date the plaintiff was claiming a light to have the money refunded was the date of the resolution of the house of representatives granting plaintiff permission to sue the state — March 17, 1919. Apparently that was the view taken by the trial court as its judgment indicates interest allowed.
The judgment of .the district court is
Affirmed.