113 Neb. 99 | Neb. | 1925
The Gothenburg South Side Irrigation District, organized and existing under the provisions of chapter 26 (sections 2857-2995), Comp. St. 1922, instituted this proceeding in the district court for Dawson county for the purpose of procuring a decree validating and confirming proceedings theretofore taken by the petitioner, including its proposed issue of bonds in the sum of $408,000. Petitioner was organized for the purpose of bringing the lands within the boundaries of the district under irrigation, and the proceeds of the bonds were to be applied on the purchase of certain water rights and in paying for the construction and maintenance of irrigation works to carry out the purposes of the organization of the district.
This is a special proceeding based upon the provisions of chapter 26, Comp. St. 1922, which, among other things, vests the court with jurisdiction “to examine and determine the legality and validity of, and approve and confirm, or disapprove and disaffirm, each and all of the proceedings for the organization of said district under the provisions of this chapter from and including the petition for the organization of the district, and all other proceedings
The district has prosecuted an appeal from so much of the decree as refused to validate the issue of bonds, and the objectors have prosecuted a cross-appeal from the finding of the court that a majority of those entitled to vote had voted in favor of the issuance of the bonds.
Section 2869, Comp. St. 1922, in dealing with the issuance of bonds, among other things, provides: “For the purpose of ascertaining the cost of any such construction work, the board shall cause such surveys, examinations and plans to Jbe made as shall demonstrate the practicability of such plan.”
On the hearing before the trial court, the main controversy seems to have been the validity of the water right, or claim to an appropriation of water originally made in 1894 by the Gothenburg South Side Irrigation Company, on which petitioner held an option to purchase. It is stipulated that there is no unappropriated water in the river, except flood water, and it is a matter of common knowledge that the flood water would not supply the needs of irrigators in the district.
If we understand the attitude of the parties, it may be said to be conceded that, unless the water appropriation of the now defunct Gothenburg South Side Irrigation Company, which petitioner purposes to purchase, is valid and
It is claimed by the petitioner that this ancient appropriation is valid. By the objectors it is said to be invalid, and that subsequent appropriators have the first call upon the waters of the river. We think this case may be determined solely with reference to this issue.
There is little, if any, conflict in the evidence. It is taken mainly from official records or presented by stipulation. The right to appropriate water from the river, upon which right petitioner has an option of purchase, arises by virtue of certain filings made in compliance with the statute, then in force, by the Gothenburg South Side Irrigation Company in 1894. Under the proceedings then had, that company claimed the right to appropriate 357.14 cubic feet of water per second. Following its application for water, the company constructed a headgate and 12 or 15 miles of ditch. But no work was done toward the construction or completion of the canal after 1894, and no water has been run in the ditch since 1902. The headgate was washed out during the season of 1902 and has never since been repaired or replaced. In 1901 one of the bridges across the ditch was taken out and the ditch filled in to make a roadway across the ditch. This practice continued throughout the years of 1902 and 1903, when substantially all the bridges had been removed and the ditches filled with dirt. In 1902 the farmers through whose land the ditch ran began to fill in the ditch and to plant the ground to crops and, ever since that time, the land has been used and occupied by the respective owners of the adjacent banks. No meeting of the board of directors of the old company was held after 1902. In December, 1900,
The proceedings heretofore outlined, covering the organization of the new district and the adoption of a proposition to issue the bonds now before the court, were then had, with the results already noted, and, on March 26, 1924, the department of public works dismissed “the eáncelation proceedings” and directed that the work should be carried on as provided in section 8432, Comp. St. 1922; that the time for completing the work of construction should be extended to July 1, 1925, and the time for applying the water to a beneficial use should be extended to April 1, 1926. Defendants contend that this order is final and concludes the petitioner herein.
In determining the validity of the claim to the prior right to appropriate the waters of the Platte river under the proceedings had in 1894, it may be here remarked that we have not been furnished with proof of any final adjudication, entered at any time, by the department authorized to administer the irrigation laws of the state, wherein or whereby such right was confirmed either in the original irrigation company or in the petitioner. But this is only one of the defects in petitioner’s claim to a valid appropriation of water. If it be conceded that the original irrigation company acquired the right to an appropriation, and that for a time it exercised the right by applying the water to
Our statute on irrigation is substantially the same as that of California and other western states, and, without stopping to collate these statutes or the construction placed upon them by the various courts, it may be said that the general, if not the universal, policy of the states is to deny to one who has made an application for an appropriation from a stream, the right to retain indefinitely the first call upon the waters of the stream, while failing to apply the same to a beneficial use. It appears that the original appropriator abandoned any right it had under its application for a period far in excess of the time fixed by statute to constitute abandonment, and during this period the rights of other appropriators seem to have accrued. Whether we deal with this subject under the term of abandonment, or of nonuser, seems to be immaterial, under the facts presented, for there was no beneficial use made of the water during the long term of years when others, more diligent, erected their wor 3 and made a beneficial use of the water to their lands. For cases somewhat in point see Kersenbrock v. Boyes, 95 Neb. 407; Farmers Canal Co. v. Frank, 72 Neb. 136; Smith v. Hawkins, 110 Cal. 122.
But it is claimed by the petitioner that the action of the department of public works in dismissing the proceedings it had instituted Tor the cancelation of the claim is a final adjudication binding all parties to this suit. This is beside the question. It is the duty of the court, under the statute, and this duty was recognized by petitioner itself in presenting its cause, to inquire into all the proceedings, and to
Without determining, for it is not necessary here to determine, the effect upon the parties to this proceeding of the order of the department of public works in dismissing its proceedings brought for the purpose of canceling the claim of the original company to an appropriation of water, we may say that the proceeding was not binding upon the appropriators who were not before the tribunal.
“The rights of a person who is not a party to a suit, nor in privity with a party, are not affected by the judgment rendered therein; as between him and a party to the action, their rights are to be determined as if the judgment had never been rendered.” 34 C. J. 1043, sec. 1480.
The mere failure of the department of public works to carry to final judgment the proceedings it had instituted to cancel the original application for an appropriation could not affect the rights of parties who, during the many years when the Gothenburg South Side Irrigation Company was dead, or dormant, acquired rights in the flow of the stream.
It is apparent that the only source of water supply available to petitioner is that claimed under the proceedings had in 1894, and the subsequent acts thereunder. If this source of supply is not available, the work now proposed to be done by petitioner would be in vain, and those owning land within the district would find their property burdened with a debt in excess of $400,000 for an irrigation system that will be valueless because of the lack of a water supply. No doubt one of the purposes of the statute is to guard against such contingency.
The record fails to show that petitioners presented a feasible plan of irrigation, and therefore, the trial court was warranted in refusing to validate the bonds presented. The judgment is
Affirmed.