292 N.W. 239 | Neb. | 1940
This is an action of mandamus brought by a number of irrigators under the- Kearney canal, on behalf of themselves and others similarly situated, • and by the Central Power Company, which, with the exception of one small user of water, is the owner of the oldest water appropriation on the Platte river and its tributaries. The respondents are the
It is not disputed that the waters of the Platte river and its tributaries are subject to appropriation for irrigation and power purposes upon the principle that priority of time bestows priority of right, and that pursuant to such principle the Central Power Company, through its predecessors in interest, was adjudicated and given a priority upon the Platte river, as of September 10, 1882, of 140 cubic feet per second of flow of water for power purposes, and a further appropriation, as of February 12, 1920, of 485 cubic feet per second for the same purposes. It is also admitted by the pleadings that 22 second-feet of water have been adjudicated to certain lands in Buffalo county for irrigation purposes with a priority dating of September 10, 1882, and which, for the purposes of this suit, will be treated as the property of certain of the relators claiming to be the owners thereof in this litigation. The foregoing appropriations of water, bearing the priority dating of September 10, 1882, are prior in time to all appropriations on the Platte'river and its tributaries in Nebraska except an appropriation to the Nelson Radcliffe canal in Morrill county with a priority dating of June 1, 1882, for 2.77 cubic feet of water per second of time.
The Central Power Company, in reliance upon its adjudicated water rights, reconstructed and rebuilt its power plant and diversion dam, and installed new machinery, appliances and equipment at a cost of $225,000 or more, to make it of sufficient capacity to beneficially use water to which it was entitled under its appropriations adjudicated
The respondents, as officers, agents and employees of the bureau of irrigation, are charged by law with the duty of the administration and enforcement of the irrigation laws of the state and the distribution of the waters of the Platte river and its tributaries within the state in accordance with adjudicated priorities. It is the contention of relators that respondents, in administering and enforcing the irrigation laws of the state and in the distribution of water for irrigation, have continuously permitted and allowed junior appropriates, situated above the headgate of the Central Power Company, to take and use water for irrigation, storage, and other purposes, without regard to priority and to the prejudice and damage of the relators.
It is urged that the district court for Buffalo county was without jurisdiction to hear the case. The applicable statute provides: “Actions for the following causes must be brought in the county where the cause or some part thereof arose: * * * Second. An action against a public officer, for an act done by him in virtue of or under color of his office, or for any neglect of his official duty.” Comp. St. 1929, sec. 20-404. The case at bar is clearly one seeking a remedy for the alleged neglect of official duty on the part of a' public officer. Does the cause of action or some part thereof arise in Buffalo county? Generally speaking, a cause of action consists of a
It will be noted that the priority date of the appropriation of 140 cubic feet per second of flow for power purposes is September 10, 1882. The appropriation of 22 cubic feet per second for irrigation purposes bears the same priority date. Under the holdings of this court, these water rights became vested as of that date. At the time of the vesting of these rights, no distinctions had been made between appropriations for irrigation and appropriations for power purposes. It is plain, therefore, that the irrigation laws of this state, the first of which was passed in 1889, and the Nebraska Constitution of 1920, do not divest the owners of these two appropriations dated September 10, 1882, of their vested interests in them. To hold otherwise would invite the exercise of the restraints imposed by the Fourteenth Amendment to the Constitution of the United States. Enterprise Irrigation District v. Willis, 135 Neb. 827, 284 N. W. 326. We think, therefore, that distinctions cannot be made between the power and irrigation appropriations involved herein, bearing the date of September 10, 1882. For all practical purposes, relators have an appropriation of 162 second-feet of water with a priority dating of September 10, 1882, as against all junior appropriators on the stream whether for irrigation or power purposes.
That the state in the exercise of its police power may supervise and control the appropriation, diversion and distribution of the public waters of the state, and impose that duty upon administrative officers, is well settled. Farmers Canal Co. v. Frank, 72 Neb. 136, 100 N. W. 286; Enterprise Irrigation District v. Willis, 135 Neb. 827, 284 N. W. 326. The first irrigation laws in this state were enacted in 1889,. In 1895 a comprehensive irrigation code was enacted which, as amended, appears as chapter 46 of the Compiled Statutes of Nebraska for 1929. The various statutory provisions thereof, providing for the distribution of water among different appropriators according to their respective priorities by administrative officers of the state, were undoubtedly enacted in the furtherance of a wise public policy to afford an economical and speedy remedy for those whose rights are wrongfully disregarded by others, as well as to prevent unnecessary waste and useless diminution of the waters of streams, and to avoid unseemly controversies that may occur where many persons are entitled to share in a limited
A proper regulation and control of the segments of the North Platte and Platte rivers involved in this case re•quire a consideration of all the factors entering into the .administration of the waters of these rivers for the benefit uf appropriators for irrigation and power purposes. In considering these factors, the two rivers and their tributaries will be treated as one, thereby obviating the necessity of referring to both when speaking of the whole.
The flow of the river even in the summer months is affected by the amount of snow falling in the mountains of ‘Colorado within its drainage basin. The river passes through parts of Colorado and Wyoming, both of which states rehuiré irrigation water in excess of the available supply. Storage and control dams under the control of the federal government also- exist along the river west of the point where the river enters Nebraska. Water rights, both senior -and junior to existing rights and priorities in Nebraska, coupled with the uncertainty of their accurate administration, add to the indefiniteness of the amount of water that passes at any given time across the state line and under the «control of the administrative officers of this state.
Appropriations of water are made throughout the length of the river. The priority dates of these appropriations have no relation whatever to their location on the stream. Hence, very early appropriations may be found at the upper and lower ends of the stream, while very late appropriations are likewise found at both ends. In times of water shortage, the later appropriators are the first to be deprived of water. The closing of canals in accordance with the inverse order of their priority dates necessarily requires certain canals to close their headgates all along the stream at the same time. Water moves down the stream at approximately 25 miles per day with the result that it requires approximately ten days to deliver water from the state line
It must also be borne in mind that the amount of flow in the river at any given time during the irrigation season is nothing more than an estimate based on spot measurements. 'Accurate figures are not obtainable until several weeks after" the immediate problem has been determined. The best available basis for the determination of the facts therefore is often very uncertain. The effect of the use of the river as a carrier of storage water also enters into the calculations. The best estimates of the administrator are often affected by unlawful diversions by junior appropriators,jn junctions and restraining orders issued by the courts, errorsofAudg-~~ ,ment by the administrator and his subordinates, dilatory compliance with closing orders, and inaccurate reports of rains, floods and weather conditions generally. All of the factors hereinbefore mentioned contribute to the uncertainty of an efficient and accurate distribution of water in accordance with adjudicated appropriations in the order of their priority.
The use of water for irrigation in this state is a natural want. The inadequacy of supply to meet the demands of the public requires strict administration to prevent waste. It is therefore the policy of the law that junior appropriators may use available water within the limits of their own ap
The real question to be decided, however, is the determination of the duty imposed upon the officers of the state in administering the waters of the stream when the available supply of water at the headgate of the Kearney canal is reduced to an amount less than the 162 second-feet to which the relators are entitled. The rights of relators to the use of this water as against all appropriators subsequent to September 10, 1882, cannot be questioned. It is the duty of the administrative officers of the state to recognize this right and to give force to relators’ priority. This requires that junior appropriators be restrained from taking water from the stream so long as such water can be delivered in usable quantities at the headgate of the Kearney canal. If it appear that all the available water in the stream would be lost before its arrival at the headgate of the Kearney canal, it would, of course, be an unjustified waste of water to attempt delivery. Whether a definite quantity of water passing a given point on the stream would, if not diverted or interrupted in its course, reach the headgate of the Kearney canal in a usable quantity creates a very complicated question of fact. It therefore is the duty of the administrative officers
After determination that a given quantity of water passing a certain point on the river would not, even if uninterrupted, reach the headgate of the Kearney canal in usable quantities, the administrative officers of the state may lawfully permit junior appropriators to divert it for irrigation purposes. This results ofttimes in having junior appropriators receiving a head of water at a time when an appropriator farther downstream is getting none, though he is prior in time. Such situations are not therefore conclusive evidence of unlawful diversions.
It appears that, during the irrigation season of 1925 and following, water belonging to irrigators under the Kearney canal was diverted through the Dawson county canal into. theJKearney canal by way of Buffalo creek in order to avoid, the large losses that would have been sustained by using the liver channel. These diversions were not objected to by the Cendra! Power Company and were consented to by the' water users under the Kearney canal. The contention is advanced that the Central Power Company thereby waived. its power right. We fail to find any merit in this contention. The diversion by. way of the Dawson county canal seems to have been made as $n emergency measure and as a means of averting exceptional losses. No water for power purposes was ever routed through the Dawson county canal; in fact, this route did not have the capacity to carry water to which the Central Power Company was entitled under its first appropriation for power purposes. While it is true that diversions were made through the Dawson county canal when there was water in the river at the headgate of the Kearney canal, we fail to find any of the elements of a waiver on the part of the Central Power Company as to its appropriation for power. The Central Power Company has in fact been objecting to these diversions for several years last past and has insisted upon all deliveries being made by the river channel. An examination of the evidence on this subject requires our holding that none of the appropriation rights of the Central Power Company bearing the priority date of September 10, 1882, has been lost by Waiver or abandonment.
The law imposes on the administrative officials of the state the duty to administer the water of the stream, as heretofore mentioned. The chief administrative officer, R.
"'“The record shows that the petition of relators was filed on January 29, 1938, after the close of the irrigation season. Consequently, we fail to see how respondents could at that time be in default of an administrative duty imposed upon them’by law. All alleged defaults occurred long before the petition was filed. The correct rule in this state is: “To warrant the issue of mandamus against an officer to compel him to act, (1) the duty must be imposed upon him by law, (2) the duty must still exist at the time the writ is applied for, and (3) the duty to act must be clear.” State v. Barstler, 122 Neb. 167, 240 N. W. 273. Relators contend that it was impossible to commence the suit at the time of the actual default because of the limited time for preparation. While it is true that relators probably were unable to make preparation for trial during the period of default, we fail to see how this would excuse the timely commencement of the action. We doubt not that, if a default had existed at the
Affirmed.