276 N.W. 398 | Neb. | 1937
The question for determination arises on a motion to dismiss an appeal from the state department of roads and irrigation to the supreme court.
The litigation was instituted by proceedings before that public tribunal, the forum of original jurisdiction. To it the Central Nebraska Public Power and Irrigation District, commonly called “Tri-County District,” directed four applications for permission to divert in Nebraska and use waters of the North Platte and Platte rivers.
Application 2351 asked for an order authorizing Tri
These projects included canals to carry vast quantities of water for irrigation and power from the Platte river southward beyond its watershed into the watersheds of the Republican and the Blue rivers. Before the state department of roads and irrigation, administered by the state engineer, these proposed diversions of waters from one watershed to others were resisted by many irrigating appropriators of Platte river waters and by riparians along that stream. Upon a hearing before the state engineer, after he acquired jurisdiction, the applications enumerated were granted. Parties objecting to the orders of the state department appealed to the supreme court. By printed briefs and oral statements of counsel at the bar, the litigants and the appellate court limited the issue for determination to the diverting of waters from the Platte river watershed to the others. The appeal resulted in an adjudication that the department of roads and irrigation was without power to authorize the Tri-County District to divert Platte river waters by canals to the watersheds of the other rivers for irrigation and power. The granting of applications 2351, 2354, 2355 and 2374 therefore were
After the mandate of the supreme court appeared in the tribunal of original jurisdiction, applications 2354 and 2374 were amended as directed by the supreme court and in the amended' form were granted November 27, 1936, on condition forbidding diversion of waters beyond the Platte river watershed; protecting the right of riparians to the use of water for domestic purposes; respecting the rights of prior appropriators of water for irrigation and rights acquired by continuous beneficial use of waters; complying with laws giving users of waters for domestic, agricultural and irrigating purposes preference over users for manufacturing and power purposes.
From the judgment of the department of roads and irrigation, granting applications 2354 and 2374 as amended pursuant to the opinion, judgment and ipandate of the supreme court, the Cozad Ditch Company and others appealed in the same case and brought up the identical record of the former appeal in its entirety.
Upon the second appeal the entire record, pleadings, evidence and judgments of both tribunals were patiently reexamined in connection with new briefs and oral arguments. It was thereupon adjudicated that the orders from which the appeal was taken conformed to the mandate of the supreme court; that every material question argued by appellants on the second appeal had been determined on the former appeal and that no undetermined justiciable issue in the proceeding had been left open for further controversy. The second appeal was accordingly dismissed. Cozad Ditch Co. v. Central Nebraska Public Power and Irrigation District, 132 Neb. 547, 272 N. W. 560.
After the proceeding again appeared in the state de
With the record in the condition outlined, the Central Nebraska Public Power and Irrigation District presented a motion to dismiss the third appeal.
The new petitioners have no greater rights than those generally accorded interveners. They were not necessary parties when the state engineer in the proper exercise of original jurisdiction granted applications 2354 and 2374 as amended by direction of the supreme court. They appeared in the proceeding and are bound by the condition in which they found it, including former adjudications. They were not entitled to relitigate issues and matters already determined in the case in which they appeared.
It necessarily follows that the motion to dismiss the third appeal must be sustained.
Dismissed. .