No. 18,116 | Neb. | Nov 12, 1913
On September 30, 1912, the Commonwealth Power Company, appellant, filed its application No. 1,229 with the State Board of Irrigation, Highways and Drainage seeking to divert 2,700 second feet of the waters of the Loup river for power and other purposes, and a.t the same time paid the state engineer the lawful fees for such filing in the sum of $2,150. The board dismissed this application on November 25, 1912. Prom this dismissal an appeal was taken to the district court for Nance county, where the action of the state board was affirmed. From this judgment said company has appealed to this court.
As a result of an examination of applications previously granted for water from the Loup river for irrigation and power purposes, made by the state engineer, a citation was served upon all persons claiming a right to the waters of the river under these applications to show cause by a certain date why the permits granted should not be canceled and annulled. A hearing was had as specified. The Nebraska Power Company, appeared, claiming rights under a number of the applications. The Commonwealth Power Company, appellant; also appeared by its counsel
On the same day the board found and determined that the rights asked for under application No. .1,229 by the appellant “are approximately the same as have already been granted to the Nebraska Central Irrigation Co. (H. E. Babcock) under application No. 709 and the two are in conflict,” and the application of appellant was dismissed. The record also shows that application No. 1,029 was filed with the board on September 30, 1910, by one Koenig asking for 3,200 cubic feet of water per second, taking water near the same point of diversion as applications No. 709 and No. 1,229; that, the title to application No. 3,029 being in litigation, the board took no action, leaving the matter to be disposed of after the supreme court had rendered its decision in the case.
The average flow of the Loup river for nine months in the year at and near the respective diversion points named in these applications is 2,700 cubic feet per second. The point of diversion of application No. 1,229 is a little above and the place of return of the water to the river is far below the diversion points of Nos. 709 and 1,029 so. that its allowance and the completion of the work would take
The appellant’s contention is that there can be no appropriation until the works are completed and the water applied to a beneficial use, and that'since, without talcing into consideration permit No. 709, there was sufficient unappropriated water in the Loup river to satisfy the amount requested in its application No. 1,229, the board erred in refusing its application. Much of appellant’s argument is devoted to establishing a proposition which needs no argument, namely, that, in cases arising under that portion of the irrigation act of 1895 which deals with water rights to be acquired thereafter, an appropriation is not perfect and complete until the works are completed and the water is applied to a beneficial use. Used in its strictest sense under such a statute the word “appropriation” denotes an appropriation which has been legally initiated by the filing of an application for a permit with'the state board, the granting of a permit by that body, the construction of the works as specified therein, and the application of the Avater to a beneficial use within the time limited in the permit or subsequent-extensions. The initial step is the application for the. permit. Its issuance gives the applicant a contingent or conditional right which becomes a final and complete appropriation only when the works are completed and the waters beneficially used. It also confers upon him the prior right to the water against all subsequent applicants during the progress of the work if he finally fulfil the conditions of the permit. But, while this is the meaning of the word “appropriation” when used in the statute in its most exact and proper sense, it is often more loosely used to mean the contingent right to an appropriation and the right of priority derived under a permit from the state board. It is so used in the statute itself. In section 28, cli. 93c, art. II, Comp.
The state board pleads that the alloAvance of appellant’s application Avould be “detrimental to the public welfare,” Avhich is one of the grounds upon AAdiich it may, under the statute, refuse a permit. It no doubt considered the fact that in all probability the alloAvance of two or more conflicting permits to the use of all available water at or near the same point of diversion would, result in defeating all projects. Capital is timid and would be very apt to be loth to enter into the development of the Avater-powers of the state if it Avere subject to the conflicts, litigation and interference with its work that Avould probably result if such a construction was given to the statute. The object of the law is to encourage and not to hinder the development of the state by the use of its waters for the purposes of agriculture or the generation of poAver, and the board AAras entitled to consider whether the alio Avance of conflicting claims to the same Avater at practically the same place would tend to accomplish or defeat the legislative purpose. Young & Norton v. Hinderlider, 15 N. M. 666, 110 P. 1045" court="N.M." date_filed="1910-08-30" href="https://app.midpage.ai/document/young--norton-v-hinderlider-6467603?utm_source=webapp" opinion_id="6467603">110 Pac. 1045.
We think the board was justified in refusing to grant appellant’s application, and the district court was right in affirming its order.
While it seems unjust that the state should retain the $2,150 paid by the applicant, under the provisions of section 8a, art. II, eh. 93a, Comp. St. 1911, it was the imperative duty of the secretary of the board to pay the money to the state treasurer at the end of the month. No rights can be predicated as against the board by reason of the secretary complying Avith this direction.
Affirmed.