Middle Loup Public Power & Irrigation District v. Loup River Public Power District

Simmons, C. J. This is a companion case to North Loup River Public Power and Irrigation District v. Loup River Public Power District, post p. 823, 32 N. W. 2d 869, released con [811] currently herewith. It is submitted on the same bill of exceptions. The factual situation varies largely as to names, dates, and in part as to parties. The issue presented and determined is substantially the same. Herein the Middle Loup Public Power and Irrigation District will be referred to as the irrigation district; the Loup River Public Power District as the power district; and the Department of Roads and Irrigation as the department. The companion case will be referred to as the North Loup case. The factual situation in the two cases is substantially the same. These differences are noted. The application for water in behalf of the irrigation district was filed December 28, 1932, and given number 2293. A corrected application was filed September 13, 1933. The irrigation district filed the same objections that were filed in the North Loup case. A hearing was had on this application and the objections at the same time the hearing was had on the application and the objections in the North Loup case. The same stipulation and acceptance were made, except that the reference was to the Middle Loup River, to 45,000 acre-feet and a maximum rate of 300 second-feet. The grant of the appropriation of the power district, made on March 23, 1934, contained the provision that “The amount of the appropriation shall not exceed thirty-five hundred (3500) cubic feet per second of time, and shall not; (a) Prevent, curtail or limit the diversion of water from the Middle Loup River by the Middle Loup Public Power and Irrigation District for irrigation purposes to the extent of 45,000 acre feet per year at a maximum rate of 300 second feet, when and if its said project is approved by the Federal Emergency Administration of Public Works of the United States, or other Governmental authority, and when and if its pending application for water for irrigation is granted.” On September 25, 1936, the department granted the application of the irrigation district subject to the same [812] conditions as set out in the grant to the irrigation district in the North Loup case, with the exception of the reference to application 2293, and 300 cubic feet per second of time. Here the irrigation district seeks a nunc pro tunc order correcting, modifying, and amending its permit so as to permit it to divert from the Middle Loup River, at the headgates of its canal, sufficient water to enable it to deliver one acre-foot of water for each acre irrigated. Objections were filed by numerous junior appropriators for irrigation purposes and by the power district. It appears that at the time the irrigation district was being promoted it was anticipated that it would furnish water to 45,000 acres of land. At the time of the hearing herein there were about 12,000 acres actually under irrigation. Under date of February 25, 1937, Mr. Tilley wrote a letter to the manager of the irrigation district of substantially the same import as the one of February 24, 1937, in the North Loup case. Under date of February 17, 1937, Mr. Willis wrote a letter to the manager of the irrigation district to the effect that its appropriation was governed by the conditions and limitations in the permit, and that it could divert up to three acre-feet in the twelve-month period. The letter of July 30, 1941, referred to in the North Loup case, applied likewise to the irrigation district here. There also is in evidence a letter to the attorney for the irrigation district from Mr. Willis, dated July 10, 1940, stating that the water user is entitled only to one acre-foot per acre on the land during the calendar year, but referring likewise to the limitations and conditions in the grant. The law applicable and our conclusions in the North Loup case are applicable here. For the reasons there stated we affirm the determination of the department denying the application. Affirmed.