McCook Irrigation & Water Power Co. v. Crews

Pound, C. The plaintiff is operating an irrigation ditch, taking water from the Republican river as appropriator. The defendants are riparian owners upon the Frenchman, a principal tributary of the Republican river immediately above the plaintiff’s canal, and claim a right to irrigate their lands with the water of said stream, both by virtue of their riparian rights and under subsequent appropriations. With the latter we have no concern. This suit is brought to enjoin the defendants from diverting water [111] necessary to the conduct and operation of the plaintiff’s ditch, and claimed by the plaintiff by virtue of its priority. The trial court granted an injunction, and the defendants appeal. The principles by which this cause must be governed have been settled substantially in the two prior cases of Crawford Co. v. Hathaway, 67 Neb. 325, and Meng v. Coffee, 67 Neb. 500, in which the several questions involved are discussed exhaustively. The defendants as riparian owners have a right to make a reasonable use of the stream for the purpose of irrigation.- Meng v. Coffee, supra. And this right is property, entitled to protection, as such, the same as property rights generally,, and is within the purview of the provisions of the constitution prohibiting taking of or damage to private property for public use without due compensation. Crawford Co. v. Hathaway, supra. The injury to the rights of a riparian owner in such cases may be nominal only, or may be substantial, depending, in each case, upon a number of circumstances. In general, the right is to be measured primarily by the amount of water in the stream available for irrigation or other proper uses, the number of persons who may so use it, the size, situation and character of the stream, and the nature of the region. The purpose of the common law doctrine on this subject is to secure equality of use by riparian owners, as near as may be, to each, by requiring each to exercise his rights reasonably, and with due regard to the right of other riparian owners to apply the water to the same or other purposes. Meng v. Coffee, supra. The right of the riparian owner, therefore, is neither a right to have every drop of the water flow past his land, on the one hand, nor, on the other, to abstract such quantities as he may deem necessary and proper for use upon his own land, to the injury of others who may desire to use the water, also. It is simply a right to be permitted to enjoy, and to make a reasonable use of, the water, consistent with like use by all other riparian owners. In Crawford Co. v. Hathaway, [112] Holcomb, J., suggested, and we entirely concur, that the extent of land with reference to which riparian rights may he claimed can not exceed the area. acquired by a single entry or purchase from the government, and he was inclined to hold that such area should be restricted to forty acres or, in case of irregular tracts, a designated numbered lot in the government survey. This is not to be taken, however, as meaning that every riparian owner may claim the benefit of the stream for the purposes of a tract of that size in every case. It is to be taken as a limitation of the reasonable use perrnitted by laAV rather than as defining it. In case the size of the stream, the amount of water therein, and the number of riparian owners who may make use thereof are such that the irrigation of five acres, for example, would be an unreasonable use, the riparian OAvner Avould not be permitted to use the Avater to that extent in derogation of the rights of other riparian OAvners, and, in consequence, could not claim damages as against an appropriator upon that basis. Tavo elements are to be considered; the amount of Avater in the stream and the extent of the riparian land. Unless and until there is sufficient water to permit use Avith reference to an entire tract acquired by the single entry or purchase from the government, the latter does not become material. In consequence, if a reasonable use of the water consistent with a like use by other riparian OAvners can not be made in a particular case, the injury to the riparian OAiuier by reason of appropriation of the Avater by an irrigation enterprise is nominal only. An important distinction must be made between an injunction suit brought by a lower riparian OAvner against an upper appropriator and a suit against upper riparian owners by a loAver appropriator. In Crawford Co. v. Hathaway, supra, it was held that a riparian proprietor might recover damages for injury to his riparian rights by appropriation under the statute, in the same way and subject to the same rules as a person Aidiose property is affected injuriously by the construction of a railroad. In [113] that case a comparison ivas made between injury to riparian rights by appropriations and injury to abutting property resulting from obstruction of streets and highways by the construction and operation of railways. It is well settled that the remedy of the abutting owner, in such cases, is to sue at law for his damages. The same conclusion was reached, with respect to injuries to abutting property resulting from the obstruction of streets and highways by poles and wires, in Bronson v. Albion Telephone Co., 67 Neb. 111. In that case it was laid down as a general rule that “in case property is not taken directly by a public undertaking, but an owner suffers some injury in an incidental right growing out of his peculiar situation or position, so that ordinary condemnation proceedings and payment of damages in advance are not practicable, the owner will be left to his remedy at law, and is not entitled to an injunction unless upon proof of insolvency or some other special circumstance.” This principle is clearly applicable to the instance under consideration. It follows that the lower riparian owner can not enjoin an irrigation enterprise by an upper appropriator under the statutes, merely because his damages for injury to his riparian rights have not been paid. His remedy is to sue at law for such damages. A different principle, however, comes into play with respect to suits by lower appropriators against upper riparian owners. Undoubtedly the upper owner, who will be deprived of the right to use water upon his riparian lands by reason of an appropriation requiring that all the water pass into the ditch or canal of the appropriator, may maintain an action at law to recover his damages. But in case he does not see fit to do so and diverts Avater for use upon his riparian lands so as to affect materially the loAver appropriator, the latter may bring a suit in equity to determine the rights of all claimants to use of the Avater and to quiet his title thereto, in which the damages to riparian rights may be ascertained and due compensation awarded. Crawford Co. v. Hathaway, supra, was such a case. [114] Where it becomes necessary for the lower appropriator to go into equity to protect his appropriation as against riparian owners whose damages have not been paid, it is obvious that he ought not to ,be permitted to maintain his suit without offering to do equity by .paying whatever damages have accrued to riparian rights by reason of the appropriation. Coming into equity, he must do equity, and can not put the riparian owners to the trouble and expense of actions at law for their damages. Nor can it be presumed that the damages in such case are nominal only. The right is a well recognized and substantial one, which may be, in particular eases, very valuable. A plaintiff who interferes with or takes away this right ought to be willing, when he comes into equity, to submit the nature and amount of the injury to adjudication and to pay such damages as may be awarded. In view of these principles, we think the decree must be reversed. It does not provide in any way for proper compensation to the defendants for damages to their riparian rights, if any they have suffered, nor is there any provision for ascertainment thereof. But, as there' must clearly be further litigation between the parties in order to settle the present controversy, we do not think it advisable to dismiss the cause. In furtherance of justice, where a decree is reversed, this court may remand the cause with leave to amend the petition and bring in new parties, instead of requiring the expense of a new suit. Hoagland v. Van Etten, 23 Neb. 462, 31 Neb. 292. We think the cause should be remanded with leave to the plaintiff to amend its petition and bring in new parties, if so advised, to the end "that its title may be quieted, the damages, if any, to upper riparian owners by reason of its appropriation determined and awarded, and all matters in dispute completely adjudicated in the one proceeding. And we so recommend. Dúfete and Kirkpatrick, CC., concur. By the Court: For the reasons stated in the foregoing [115] opinion, the judgment of the district court is reversed and the cause is remanded for further proceedings, with leave to the plaintiff to amend its petition and to make new parties defendant, if so advised. 1. Appeal: Issues. Ordinarily, a case on appeal will be tried and determined in the appellate court upon the same issues raised by the pleadings and the evidence as were presented in the trial of the case in the court in which it originated. 2. Irrigation: Use oe Waters. It is the policy of the law to regulate the diversion and use of the waters flowing in the streams of the state for the irrigation of lands by a uniform system applying alike to all waters thus diverted; and the law of appropriation, as defined by the statute and administered by the state board of irrigation, is deemed an effective means to accomplish the desired results. 3. Damages. Where an appropriator of water for purposes of irrigation has acquired a vested right under the law to the use thereof for such purposes, a riparian owner on the same stream can not enhance the damages he has sustained, if any, to his riparian estate by, subsequently to the appropriation thus acquired, constructing irrigating ditches to irrigate his riparian lands under his common law right to a reasonable use of the water of such stream for such purpose. 4. Injunction. Where an appropriator has acquired a valid right to the use of water under the laws governing the taking and use of water for purposes of irrigation, the right is in its nature property and entitled to be protected as such, and for any invasion of, or injury to, the same the law will afford a remedy. And in such a case, equity will restrain an upper riparian owner from subsequently diverting water, the right to use which had been thus acquired, without requiring the appropriator to institute proceedings to condemn the rights under the common law of all riparian owners to the reasonable use of water flowing in the stream for irrigating riparian lands. 5. Statutory Eights: Action. Where an appropriator has acquired a valid right to the use of water under, the irrigation laws of the state, and is in the actual use of such water for purposes of irrigation, the right thus acquired is superior to that of a riparian owner to a reasonable use of the water of the stream under the common law, to irrigate riparian lands, and, for the taking or impairment of the latter’s right, an action is maintainable if any damages have been suffered by-the owners of the riparian estates. [115] Reversed.