State ex rel. Clarke v. Gering Irrigation District

109 Neb. 642 | Neb. | 1923

Letton, J.

The relators are landowners living within the bound.aries of. the Gering Irrigation District. Their land is situated toward the lower end of a lateral, known as lateral No. 2, and deriving its supply of water from the main. canal belonging, to the district. The lateral is about three or four miles long. The lateral was not constructed by the, irrigation district, 'but by the landowners whose lands it was designed to water, For a number of years the landowners toward the lower end of the lateral have, been unable to obtain their proper share of the water taken from the main .canal. The upper water-users took so much of the water in times of scarcity that little or none could be had near the lower end of the lateral. They, also had trouble during a number of years, both with regard, to washouts, when there was an excessive flow in the main canal, and scarcity of water, causing loss of crops in some seasons. A number of years ago the owners of lands toward the lower end of the lateral took steps to form a corporation and to take over and control this lateral, but the effort proved abortive and the troubles have continued. . Relators have demanded relief from the directors of the irrigation district, asking 1hat the district take over and control the distribution of water along the lateral, but this request was refused. They thereupon brought this proceeding in mandamus, for the purpose of compelling the board of directors. of the district to make, immediate provision for the repair and enlargement of. lateral No. 2, so as to render its capacity-sufficient to furnish them their pro rata share of -the water, and to require the district, through its superintendent, to supervise and measure the distribution of,. water - through the outlets, of the lateral, so that each water:user should receive, his pro rata share. , , . ....... ...

The respondents deny that the lateral is any part of the irrigation works of the .district. They admit that the district has. never .attempted, to .maintain or keep the lateral in repair., oq , supervise or .control it ; they .allege that Highland Lateral Company .No. 2, is the owner of the lateral; that the plan of organization adopted by the district does not include'the'construction or repairs of any lateral, but' only the delivery of water a.t the bank of its main canal; that it is not required to deliver water to the respective landowners, but complies with the law by delivering water from the main'canal at the' bank into the laterals,' and that'no provision hás ever been made for delivering water at ¿ny other 'place; that each landowner has built and' maint'ainéd the necessary laterals for the' conveyance' of water from the main canal to his individual lands, and that relators and théir pred ecessors in ownership have for more than 20 years acquiesced in their said plan.; that' the' district has exhausted its tax levy and has no funds with which to perform, and no law authorizing the raising of funds for such a purpose.

The facts alleged in the petition as to the condition of the lateral and the deprivation of water supply to relators are undisputably established, and, in fact, not seriously controverted by respondents.

Since the defenses made are legal in their nature, it becomes necessary to examine the' statute to ascertain the duties and powers of the directors of an irrigation district, and the rights of the landowners in the district with respect to the distribution and apportionment of water.

Is the lateral a part of the irrigation works of the district, and does the fact that the district has never constructed a lateral excuse its failure to furnish water to residents? Section 2865, Comp. St. 1922, makes it the duty of the directors of irrigation districts “to make all necessary arrangements for right of way for laterals from the main canal to each tract of land subject to assessment, and when necessary the board shall exercise its rights of eminent domain to procure right of way for the laterals and shall make such rules in regard to the payment for such right of way as may be just and equitable.” This evidently contemplates that the district shall procure the right of way for the necessary laterals “to cachi tract of land subject, to assessment.”. That • the ■ district -has .not. .heretofore, furnished - water ,éx-. cept.at head gates- upon its main,-canal.>is no, defense,;, The. fact that. it hasneglected - a - plain:. duty for,. many „ years;, is-no. reason why.it should continue ..to neglect,it. , That the. plan of the. district did, not. contemplate, the., construction of laterals is also, no defense.., . If the plan was defective and failed,-to accomplish, the, statutory duty of the district, to furnish- water to; each landowner in the district, in section 2866 it is provided : “The .board, .its. agents and employees shall .have the right to enter, upon any land within the district, to make surveys, and may locate the line of any canal or canals and the■*. necessary branches.”. This language presumes the necessity. of . surveys and the. location of canals and necessary branches after the. formation of, the district, and assumes, that “branches” or laterals .may be.necessary to carry out the purpose of the organ-, ization. , . ,

By section 2865 it is made the duty. of the board to “establish equitable by-laws, rules and regulations for the distribution and use of water among the owners of said lands,. ,and generally to. perform all such acts as shall be necessary to fully carry out,the purpose of this article.” This section further provides that water shall be apportioned ratably to each landowner upon the basis of the .ratio which the last assessment of said owner for district purposes bears to the whole sum assessed by the district.

An irrigation district is a public corporation. Its funds are derived from the taxation, of all .land within the district. The very purpose of its organization is to furnish water upon fair and .equitable terms and. conditions to each and every landowner within the district. 'Comp. St. .1922, secs. 2857-2953. This, in the case, of some •small districts, may perhaps.be done by supplying water •direct, to landowners from the banks, of .one canal. But this can seldom be done in districts embracing many acres. In such case there must be laterals to carry the water to the ultimate user. Such laterals are necessary portions of the irrigation works and should be provided, maintained and supervised by the district, so that a just apportionment of the water may be supplied to each landowner therein. It would be manifestly unjust and unfair to assess a landowner whose property is situated several miles from the main canal without providing him reasonable facilities to obtain the water for the furnishing of which .he is taxed. To sustain the position of the. respondents would 'be to hold that the owners of land adjacent to the main canal are entitled to receive water without further initial outlay, Avhile at the .-same time other landowners, who are also taxed according to valuation, shall be compelled to build and maintain expensive works and furnish supervision- for such works in order to obtain that which is supplied without such expense to others who have no greater right.. This would be clearly inequitable, unfair and unjust, .and such construction of the. statute ought not to . be ■ adopted. Of. course,- landowners' may provide. their own laterals if they • desire, but. where there is more than one. water-user taking water from the same lateral, and any dispute arises between the users, the district board should regulate--the -supply, as in the case -of other “users of water. Water is as essential -to successful and profitable agriculture in arid regions as blood is to the body, and its distribution is as necessary to such pursuit as the circulation of the blood is to animal- tissues. The - statute, both by express direction and by implication, - provides that all powers- reasonably necessary to carry, into-f effect. the object and purpose of the organization are. possessed by the board of directors.

. That the petition does not show that the district has sufficient funds on hand which can be utilized for the purpose'-of- repairing the lateral is not a sufficient defense under the circumstances proved in this case. The evidence shows that, upon several occasions during the years in which there has been trouble over the water in the lateral, the presence of a ditch-rider who could and would control the quantity of water withdrawn from the lateral by the upper owners would have allowed the water to which the lower owners were entitled to- flow to their lands. Furthermore, the writ did not compel instantaneous action, but only required the board of directors to make provision for the repair and enlargement of the lateral and for its supervision in the future. The refusal to perform the duties requested was never placed by the .directors on the ground that they had no funds with which to perform, but their refusal has always been upon the ground that the district had no authority to construct, maintain and supervise the laterals, their duty ending with the opening of the head-gate upon the main canal; and this is the real and substantial issue in this case.

‘ The respondents argue that section 8462, Comp. St. 1922, provides: “Any owner or person in control of any ditch for irrigation, purposes * * * shall construct necessary outlets in the banks for the delivery of water to all persons who are entitled to the same;'’ and that this is the measure of their duty. This section is no part of'the irrigation district act, and does not affect the duty, of the district to. furnish water. If applicable at all, it only prescribes -upon whom the duty to construct outlets rests. ;

Similar .questions as to the rights of water-users have been presented to the. supreme courts of California, Utah, and Idaho, and they have taken the same view. Jenison v. Redfield, 149 Cal. 500; Niday v. Barker, 16 Idaho, 73; City of Nampa v. Nampa & Meridian Irrigation District, 19 Idaho, 779, 23 Idaho, 422; Harris v. Tarbet, 19 Utah, 328.

Affirmed.