delivered the. opinion of the court.
In' form this was a suit to determine the relative rights of the parties to divert the waters of the North Platte River, in western Nebraska, for purposes of irrigation, but the only controversy disclosed was over the extent and priority of the right of the Farmers Mutual Canal Company, the principal defendant. Another defendant, the Tri-State Land Company, was interested as a stockholder of the canal company, and need be noticed only in another relation.
The canal company claimed a right to divert through its canal l,1426/7 cubic feet of water per second of time— usually spoken of' as second feet — undеr an appropriation dating from September 16, 1887, and the other parties severally claimed rights to divert specific amounts under later appropriations. In so far as the canal.company’s claim exceeded-28 second feet with a priority dating from September 16,1887, it was challenged оn the grounds that the appropriation upon which it rested had not been perfectéd with reasonable diligence; that this was the situation when the appropriations under which the others were claiming were made and perfected; that if the claim subsequently was enlarged it could not as to the enlаrgement take priority over the intervening rights of others, and that if it originally covered l,1426/7 second feet, which was disputed, all right to more than 28 feet had
It was conceded that during portions, of the irrigation season the flow of the stream had not been sufficient to satisfy all of these claims and that the State Board of Irrigation recently had recognized the canal company’s claim by refusing to restrict its divеrsion in time of low water to less than l,1426/7 second feet.
Thé cause was submitted on the pleadings and on a “stipulation of facts” covering 84 printed pages and containing much. that was purely evidential and not' in the nature of a statement of ultimate facts.
The stipulation disclosed that the canal company’s canal was about 80 miles in length, was completed in October, 1910, and was capable of irrigating 80,000 acres; that in 1895 it had cost about $100,000 and was capable of irrigating 30,000 acres; that by reason of financial diffi
The trial court held that thе canal company’s right, although prior in time, did not extend to more than 28.57 second feet of the water, and entered a decree to that effect. An injunction was also granted restraining the company from taking more than was thus accorded to it. In the Supreme Court the decree was reversed аnd the suit was dismissed on the merits so far as it concerned the canal company and the Tri-State Land Company, and without prejudice in respect of any controversy between the other parties. 92 Nebraska, 121.
The Supreme Court, recognizing that the case was of great importance to the parties and to all who were interested in irrigated lands in the State, and that any decision therein would almost inevitably result in serious loss to one or more of the parties, proceeded in a painstaking way to state, discuss and determine all the questions presented.. Among other things, it sustained thé authority of the State Board of Irrigation under the Act of 1895 to adjudicate claims like those to the waters of the North Platte River; described the board’s power in that regard as quasi-judicial and its adjudieatiohs as final un
As respects the notice actually given to the other parties, the opportunity which they had for opposing or contesting .the canal company’s claim before the board, and the knowledge of the board’s action which they reasonably should be regarded as possessing, the court found, in substanóe, that before the board began to inquire into the claims to the waters of the North Platte it gave due notice of its purpose so to do; that under that notice all the parties to this'suit, or their predecessors in interest, appeared before the secretary of the board, at the times and places indicated in the notice, and presented such evidence as they deemed appropriate in support of their respective claims — the evidence being preserved and becoming a part of the- record in that proceeding; that the board’s printed rules, which were duly brought to the attention of all the parties, permitted any claimant to contest the claim of another, but no one sought to contest the canal company’s claim; that in ordinary course, after the evidence was presented, the claims were adjudicated — a separate opinion upon each claim being prepared by the secretary, who was the State Engineer, and afterwards adopted by the board; that each claimant was specially notified of the decision upon his own claim, but not of the decisions upon the claims of others; that the decision upon the canal company’s claim, in addition to being en
In these circumstances the court concluded that -the contention that the board had proceeded without adequate notice to the parties, or without affording them a reasonable opportunity to be heard; had no real foundation. It also concluded that, in view of the nature of the enterprise, the large expenditures required and the circumstanсes surrounding the temporary suspension of the work, the contention that part of the canal company’s claim had been lost through lack of diligence or non-user was highly inequitable and untenable.
Then coming to the question of estoppel the court held that, even if the other questions were deсided against the canal company, it was entitled to prevail upon the ground that its adversaries were estopped by reason of their own conduct. In the course of its opinion the court referred at length to the admissions in the pleadings and stipulation and found, as matter of fact, that shortly aftеr the decision in
Farmers Canal
Co. v.
Frank, supra,
the TriState Land Company, the canal company’s immediate predecessor in interest, actively took up the work of completing the canal and diverting works and proceeded therewith in good-faith and with vigor, relying upon that decision and the state board’s adjudication and оpenly claiming the amount of water and priority specified in the latter, and that the other parties, with knowledge of that claim and situation, made no claim of superior right to the water, but remained, silent for four years while the work, which the court, described ‘f as comparable only to the constructiоn of a railroad,” was being carried to completion at enormous cost and the water was being
"Under these circumstances, and having this knowledge, it would be contrary to the plainest prinсiples of equity if plaintiffs might stand silently by, seeing the defendants engage in such a monumental work under claim of right, and utter no word of warning as to their own claims, which, if eventually established, would deprive defendants of the water which the canal was built to carry, condemn the whole enterprise to failure, and result in the аbsolute loss of the money expended. It would be manifestly inequitable and unjust to allow the plaintiffs, after the works were practically finished and the money expended, to insist upon claims which, had they been asserted in good time, would at least have put the defendants upon their guard and have given them cаuse to pause and hesitate in their expenditures until the validity of their title had been determined.”
Concisely stated, the assignments of error complain that the Supreme Court infringed the due process and equal protection provisions of the Fourteenth Amendment, first, by giving decisive effect to the state board’s decision, -instead of holding that it was made without lawful notice or opportunity to be heard and therefore was void, and, second, by misconceiving or misapplying the statute and common law of the State in disposing of other questions.
Qur jurisdiction is disputed and must be considered, as, indeed, it should be, even if not challenged. As has been shown, several questions were presented to the Supreme Court and all were considered. One was whether the state board’s decision could be given any conclusive effect consistently with the due process and equal protection clauses, of the Fourteenth Amendment, аnd another was whether the defense of estoppel
in.paih
was well grounded. The first was plainly a federal question and the other as
It does not, as we think, admit of doubt that the estoppel in pais is made an independent ground of the judgment. Instead of being interwoven with the validity of the state board’s adjudication, which is the other ground, it is'distinct from it, and is so treated in the court’s opinion. In taking up the question of estoppel, as also in concluding its discussion of the subject, the court plainly shows that it is then indulging an assumption that the other ground is not tenable. True, the board’s proceedings and adjudication are referred to as having some bearing upon the gоod faith of the canal company and upon the knowledge which the other parties had of that company’s claim, but in this the court neither departs from the assumption indulged nor confuses the two grounds of the judgment. Even if invalid^ the board’s proceedings and adjudication could well have a real beаring upon the matters indicated.
In view of the facts before recited we think it cannot be said that the ruling upon the question of estoppel is without fair support or so unfounded as to be essentially arbitrary or merely a device to prevent a review of the other ground of the judgment. We therefore аre not at liberty to inquire whether the rúling is right or wrong. And it may be well to add that the question did not originate with the court.- It was presented by the pleadings, was in the minds of the parties when the stipulation was made, and was dealt with by counsel and court as a matter of obvious importance.
It is not urged, nor could it well be, that as а ground of decision the estoppel is not broad enough to sustain the judgment.
The claim that the court in disposing of some of the questions, including that of the estoppel, misconceived or misapplied the statutory and common law of the State and thereby infringed the due process and equal protection
It results from what has been said that the judgment is one which is not open to review by this court.
Writ of error dismissed.
Notes
See also
Sherman
v.
Grinnell,