Kersenbrock v. Boyes , 95 Neb. 407 ( 1914 )

Rose, J.

The subject of controversy is the right of plaintiff to use to*' irrigation and power public water of the west fork of the Blue river, where it crosses his- land near the center of the southeast quarter of section 32, township 9, range 3 east, in Seward county. Plaintiff asserts that he acquired water rights under two applications made to the state board of irrigation, December 20, 1895, one for an appropriation of 21/7 cubic feet of water a second for irrigation, and the other for an appropriation of 105 cubic feet of water a second for the generating of power for a grist-mill and for the pumping of water for irrigation, including the right to construct a dam five feet high at the place described. A certificate evidencing the appropriation for irrigation was issued to plaintiff May 20, 1907; but no certificate showing an appropriation for power was ever issued to him, though he pleads that he complied with statutory conditions; that he performed the necessary work and made the required improvements; that he applied public water to beneficial uses; that he acquired, and still retains, the right sought under both applications; and that his privilege of applying water to beneficial uses still exists. His claims are resisted by the Blue River Power Company and the state of Nebraska, defendants, on the grounds that he never perfected his appropriations by complying with statutory conditions; that he never applied public water to a beneficial use; that his certificate was procured by fraud; that, even if he had used water for irrigation, he abandoned the use in 1896, and thus lost the right; that no certificate of appropriation for power was ever issued to him, or such a right acquired; that for more than ten years no beneficial use of public water has been made under either application. The Blue River Power Company, defendant, filed with the state board, Jan-nary 3, 1912, an application for an appropriation of 100 cubic feet of water a second for the purpose of operating an electric power plant on tbe site described in plaintiff’s applications, including tbe right to construct at the same place a dam 15 feet high. Rival applicants having asserted the right to use the same public water at the same site, the state board, February 13, 1912, directed plaintiff to appear and show cause why his applications should not be canceled. Upon a trial of the issues the state board canceled both of the applications of plaintiff' June 15, 1912, and he appealed to the district court for Seward county, where the facts were fully pleaded. After the parties on both sides had adduced proofs at great length, the trial court found all of the issues in favor of defendants and upheld the order of the state board. Plaintiff appeals to this court for the relief denied below.

Plaintiff argues that the action of the state board in attempting to cancel his water rights was premature. This proposition is based on the law of 1911, providing that “immediately upon the passage and approval of this act, or as soon as possible, and as often thereafter as shall be necessary, it shall be the duty of the state board to examine into the condition of every water appropriation within this state,” and that, after a notice and an appearance, “the said board shall hear evidence, and if it appears that such water appropriation has not been put to a beneficial or useful purpose, or having ceased to be used for such purpose for more than three years, the same shall be declared canceled and anulled.” . This statute went into effect April 10, 1911. Laws 1911, ch. 153, secs. 17, 37. Plaintiff insists that it operates prospectively only, and permits him to make a beneficial use of water any time within three years from the enactment of the statute, or any time before April 10, 1914; that the board cannot cancel his water rights at an earlier date; that he is a riparian proprietor; that he spent large sums of money in making improvements; and that he acquired vested rights which cannot be taken away without the allowance of a reasonable time after the passage of the act to apply water to beneficial uses.

It seems clear that the legislature, in passing the act of 1911, conferred upon the state board power to cancel prior applications for appropriations of water without waiting three years. The law was passed with an emergency clause, making it effective upon its approval. The state board was directed to act “immediately,”' or “as soon as possible,” and “as often thereafter as shall be necessary.” The power to cancel exists after notice and an opportunity to be heard, “if it appears that such water appropriation has not been put to a beneficial or useful purpose.” The terms of the statute, therefore, make it clear that the power to cancel applies to former cases, where “such water appropriation has not been put to a beneficial or useful purpose,” within the meaning of the law, and that it may be exercised after reasonable notice and an opportunity to be heard. The power to cancel applications for failure of applicants to comply with statutory conditions applies alike to the past and the future, and on familiar principles the act of the legislature is not for that reason void.

Did the state board in canceling the applications of plaintiff deprive him of vested rights? He was notified by the state board to appear and show cause why his applications should not be canceled. He had an opportunity to make his defense. From an adverse order he appealed to the district court, where formal pleadings were filed by all of the parties and where the cause was tried according to established forms of procedure in courts of justice. Plaintiff insists that the action of the state board, if sustained, will deprive him of his investments, of his site for a dam, and interfere with prospecting for minerals. It is true that he expended large amounts of money in constructing a dam, in installing a pump, in conveying water from the river to his land, and in drilling for minerals. However, a vested right to the use of public water, for irrigation or power, depends upon compliance with the conditions imposed by statute. The certificate of the state board that plaintiff had acquired an appropriation of water for irrigation did not of itself create or ’grant such a right. It was, at best, evidence of a water right. Plaintiff made his applications under the act of 1895. Laws, 1895, ch. 69. Beneficial use of water was a condition of his right to a certificate under that statute, as well as under the act of 1911. His own testimony-shows that he made false statements to the state board relating to his compliance with conditions on which a water right for irrigation depends. He did not comply with statutory ■ obligations. His certificate was procured by fraud. It granted no rights. While he pumped water out of the river and conveyed it to his land, he provided no practical means of distribution or of application to a “beneficial use,” within the meaning of the irrigation law. A feasible scheme of irrigation, as contemplated by statute, was wanting. Though the evidence is uncontradicted that plaintiff has made no attempt at irrigation since 1896; the finding of the trial court that he never applied any water to a beneficial use for that purpose is manifestly correct. It follows that in this respect he neither acquired nor lost a vested right.

Plaintiff’s other application contemplated the construction and maintenance of a dam five feet high, the running of a grist-mill, and the pumping of water for irrigation. The conditions of acquiring rights under this application, as indicated on its face, required plaintiff to begin the work of construction by June 1,1898, to complete it and to apply waters to a beneficial use by September 1, 1899. Proof of compliance with these conditions was never made, and no certificate to that effect was ever issued. It has already been shown that water pumped for irrigation was not applied to a beneficial use. No grist-mill was erected, and only a small quantity of feed was ground with waterpower. For a period of more than ten years before plaintiff was cited to appear before the'state board, the dam was not in a condition to generate power, for the beneficial uses of pumping water for irrigation or for running r grist-mill. The evidence shows clearly that plaintiff did not comply with, statutory conditions or make a beneficial use of public water under either application. A feasible plan, undertaken and carried out in good faith, is necessary to a vested right to a statutory appropriation of water for irrigation or power. Within the meaning of the statute, plaintiff did not apply water to a beneficial use under either application, and consequently he did not acquire a vested right, which the state board could not cancel.

It is suggested that the act of 1895, under which plaintiff’s applications were made, did not limit the time to apply water to beneficial uses. That act declares: “All appropriations for water must be for some beneficial or useful purpose, and when the appropriator or his successor in interest ceases to use it for such purpose the right ceases.” Laws 1895, ch. 69, sec. 18. Under any construction of the act, plaintiff did not have over ten years to comply with statutory conditions. Farmers Canal Co. v. Frank, 72 Neb. 136. Even that period had expired before the act of 1911 was passed, and before any action to cancel his applications had been taken by the state board.

This is an appeal to the district court from an order of the state board, and is confined to the cancelation of the applications made by plaintiff. His rights as a riparian proprietor and. an alleged trespass by the Blue River Power Company upon his site for a dam are not involved or considered.

It is further argued that the state is a party to the proceeding, and cannot sit in its own case to cancel rights which it has granted. The position is untenable. The state board is a tribunal, quasi-judicial in its nature, with authority to perform statutory duties in administering the public waters of the state. Farmers Canal Co. v. Frank, 72 Neb. 136. The state board is impartial between plaintiff and the state. It is no more disqualified in,this case than a court in an action between an individual and the state.

There is no error in the record.

Affirmed.