83 Neb. 678 | Neb. | 1909
The plaintiff has projected and partially completed a system of irrigation in Dawes county, Nebraska. The proposed system is something over 30 miles in length, of which about 15 miles have been completed, and which include certain reservoirs for the storage of waste water. In April, 1901, he made an application to the commissioner of the general land office at Washington for right of way for his system over the public lands of the United States, under the act of congress approved March 3, 1891, and subsequent acts amendatory thereof. A certified copy of a letter from the commissioner of the general land office of date November 16, 1906, is to the effect that plaintiff’s application was returned for correction, the date when said application was last returned being June
Some of the lands through which the plaintiff’s ditch is constructed were at the time occupied by parties under homestead entries. From some of these, right of way deeds were obtained, and, as we understand the, record, some of the lands now occupied by the defendants were formerly in possession of homestead claimants who granted to the plaintiff right of way through their lands, but these homestead claimants have since abandoned their entries, and the land reverted to the United States free from any claim by such parties. The defendants are now in possession of some of these lands and refuse to allow the plaintiff to enter thereon for the purpose of clearing out his ditch, repairing or operating the same. This action was brought to enjoin them from interfering with his control, operation, repairing and maintaining the ditch through these lands. The answer of the defendants is quite lengthy, and to the effect that the waters of the creek from which the plaintiff supplies his ditch are wholly insufficient to supply an irrigation canal, and that it is entirely dry diming portions of the year, so that the project is not a feasible one.
The plaintiff is constructing his ditch under a permit obtained from the state board of irrigation, which has "jurisdiction in the first instance to grant such permits, and to determine from what streams water may be taken and the amount of such water. The action of that board cannot be questioned or ignored in this proceeding. It is evident from the evidence that the plaintiff has no right of way granted him by the defendants over their lands, and the fact that before they entered the same from the
We recommend an affirmance of the judgment.
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is
Affirmed.