State v. Nielsen

Rule of Law:

An irrigation water right can be lost through abandonment by nonuser for the statutory period of limitation for real property actions, independently of statutory cancellation proceedings. Additionally, a party may be equitably estopped from asserting such a right if their conduct leads another to detrimentally rely on their express or implied disavowal of the right.

Facts:

• P. P. Waitman obtained an appropriation of irrigation water from Pumpkinseed Creek, identified as docket No. 847, approved April 24, 1897, with a priority date of March 12, 1891, to water lands including parts of what later became Valdemar A. Nielsen’s Section 30.
• By September 26, 1923, the irrigation works associated with Waitman’s appropriation, including the headgate and canal in Section 30, were practically useless, the canal was overgrown, and the flume was in disrepair.
• Justin S. Smith and Albert Langford owned part of Section 30 from 1921. Smith, who occupied the land from 1921 until Nielsen took possession in 1932, performed no work on the irrigation ditches or flume, nor did he attempt to irrigate the land during his 11-year occupation.
• In March 1932, Valdemar A. Nielsen acquired ownership of Section 30 through foreclosure and has farmed the land since. Pumpkinseed Creek, a natural stream, flows through Nielsen’s land.
• Bern R. Coulter completed the purchase of adjoining land in Section 29, also traversed by Pumpkinseed Creek, in 1939.
• In the fall of 1939, Coulter and Nielsen discussed repairing the old irrigation works. Nielsen explicitly told Coulter he was not interested in obtaining an appropriation, stating he believed he had the right to use water from the creek running through his land without state permission.
• Beginning in late 1939, Coulter and Nielsen constructed a wooden dam. Subsequently, Coulter obtained two state appropriations for water from Pumpkinseed Creek for his land and, since 1941, expended over $4,200 on irrigation works on his property.
• On July 31, 1950, Nielsen denied a hydrographer from the Bureau of Irrigation access to his headgate, asserting the department lacked authority to control his water use because he did not have an application on file with the State.

Procedural Posture:

• On October 11, 1923, the Department of Public Works commenced administrative proceedings for the cancellation of P. P. Waitman’s water appropriation (docket No. 847), issuing notice and holding a hearing on November 20, 1923.
• The Department issued an order dated December 31, 1923, canceling docket No. 847, with no subsequent proceedings to reopen or set aside this order.
• The State of Nebraska filed an action in the district court for Morrill County against Valdemar A. Nielsen, seeking a permanent injunction against his appropriation of water from Pumpkinseed Creek and his interference with department access to his irrigation works.
• Bern R. Coulter was granted leave to intervene in the action.
• On October 9, 1950, after the current lawsuit was started, Nielsen filed a claim (docket No. 1055) for an irrigation appropriation under a Dick Brown canal priority, which was denied by order dated October 1, 1951, with no appeal taken.
• Nielsen filed application No. 6811 on November 15, 1954, for appropriation of water from Pumpkinseed Creek, which was approved January 31, 1955.
• The trial court (district court) found generally in favor of the State and Coulter and against Nielsen, permanently enjoining Nielsen from interfering with department access and from appropriating water from Pumpkinseed Creek.
• Nielsen filed a motion for new trial, which was overruled.
• Nielsen appealed the trial court's decision to the Nebraska Supreme Court.