State ex rel. Cary v. Cochran
292 N.W. 239, 1940 Neb. LEXIS 105, 138 Neb. 163 (1940)
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Rule of Law:
Administrative officers distributing public waters must strictly enforce adjudicated priorities, delivering usable quantities to senior appropriators even if substantial losses occur, as the doctrine of reasonable use does not permit administrators to override vested rights based on perceived inefficiencies. However, a writ of mandamus to compel such duty requires that the official default still exists at the time the writ is applied for.
Facts:
- Central Power Company (Central Power) held adjudicated water rights on the Platte River, including a priority of 140 cubic feet per second (cfs) for power as of September 10, 1882, and a further appropriation of 485 cfs for power as of February 12, 1920.
- Other relators, landowners in Buffalo County, held adjudicated rights for 22 cfs for irrigation with a priority dating of September 10, 1882, appurtenant to their lands, delivered via the Central Power Company canal.
- Central Power Company invested over $225,000 to reconstruct its power plant and diversion dam, and install new machinery and equipment, in reliance upon its adjudicated water rights.
- The relators' September 10, 1882, appropriations (totaling 162 cfs) were prior in time to all other appropriations on the Platte River and its tributaries in Nebraska, except for one small canal.
- Relators' lands were deprived of needed irrigation water, and Central Power Company's plant was shut down because junior appropriators upstream were permitted to take water without regard to priority.
- The Platte River, particularly east of Gothenburg, is an inefficient carrier of water, experiencing significant losses due to evaporation, percolation into sand and gravel formations (some entering the Republican River basin), and recharge requirements for dry riverbeds.
- Water moves down the stream slowly, taking approximately 10 days for water from the state line to reach the Kearney canal, creating a 'lag period' where river conditions can change.
- In the summer of 1937, a large quantity of floodwater passed the state line but failed to reach the Kearney canal as intended due to incorrect advice and mistaken judgment by the water administrator.
Procedural Posture:
- Relators (irrigators under the Kearney canal and Central Power Company) initiated an action of mandamus in the district court for Buffalo County against the Governor, the State Engineer, and the Chief of the Bureau of Irrigation and his subordinates.
- The district court denied the writ of mandamus and dismissed the relators' petition.
- Relators appealed the district court's decision to the Supreme Court of Nebraska.
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Issue:
Does the doctrine of reasonable use permit state administrative officers to refrain from delivering a usable quantity of water to a senior appropriator when doing so would result in significant water losses, or must they strictly enforce adjudicated priorities by delivering water if a usable quantity can reach the senior appropriator? Also, does a writ of mandamus to compel such enforcement require that the administrative default exist at the time of application?
Opinions:
Majority - Carter, J.
No, the doctrine of reasonable use does not extend so far as to authorize the administrator of the waters of the stream to refrain from delivering a usable quantity of water to a senior appropriator because it might appear to him that excessive losses would result; instead, they must strictly enforce adjudicated priorities by delivering water if a usable quantity can be delivered. Yes, a writ of mandamus to compel such enforcement requires that the administrative default exist at the time of application. The court reasoned that vested water rights, established as early as 1882, are protected against divestment by later irrigation laws or constitutional provisions, and no distinctions can be made between power and irrigation appropriations with the same priority date if it divests such vested rights. The state, through its police power, has a duty to administer and enforce irrigation laws, protect prior appropriators, and enforce all adjudicated water rights, performing ministerial acts in doing so. The use of water by a junior appropriator becomes adverse to a senior appropriator only when it results in a deprivation of the senior's allotted amount. When water is insufficient, administrative officers must restrain junior appropriators from taking water if a usable quantity can be delivered to the senior appropriator, even if significant losses occur during delivery. Determining whether a usable quantity can be delivered, given complex factors like evaporation, percolation, and lag time, is an administrative function, and the administrator's finding of fact is final unless it is unreasonable or arbitrary. The doctrine of reasonable use, while recognizing the public interest, does not permit administrators to decide that prospective losses justify denying delivery of a usable quantity of water to a senior appropriator, as this would be incompatible with vested interests and destroy the purpose of the prior appropriation doctrine. The administrator's duty is to enforce existing priorities, not to determine, change, or amend them. Regarding mandamus, the court affirmed that the duty must be imposed by law, still exist at the time the writ is applied for, and be clear. In this case, the alleged defaults occurred before the petition was filed, and the administrator expressed willingness to comply with the law, thus the trial court was justified in denying the writ as the conditions for its issuance were not met.
Analysis:
This case significantly clarifies the limits of administrative discretion within the prior appropriation doctrine, reinforcing that vested water rights are paramount. It prevents state administrators from denying water to senior appropriators based solely on perceived 'excessive losses' under a broad interpretation of 'reasonable use,' thereby protecting the security of long-established water rights. The ruling also underscores the strict procedural requirements for obtaining a writ of mandamus, emphasizing that the alleged governmental default must be ongoing at the time of application, which impacts the timing and strategy of legal challenges against administrative agencies.
