City of Chadron v. Card

186 N.W. 350, 107 Neb. 376, 1922 Neb. LEXIS 128

• Court: Nebraska Supreme Court
• Decided: January 13, 1922
• Docket: No. 21965
• Status: Published

Opinion

Rose, J.

This is a proceeding before the State Department of Public Works, Bureau of Irrigation, Water-Power and Drainage. The city of Chadron is the applicant and is seeking permission to increase its water-supply. It installed a' system of water-works in 1892, and has since kept the plant in operation, using water from Chadron creek. Owing to the growth of the city of Chadron an increase in the supply of water for public and private uses is imperatively demanded. To this end additional water-works are in course of construction or have been installed. The present application,- as indicated by the prayer, is for a permit—

“To impound and apply to such uses all unappropriated waters flowing, in said stream, and all storm and flood waters, and all seepage, subterranean, underground and percolating waters, subject to the disposition of the state, in the said valley of the Chadron creek, and to impound any and all waters not otherwise appropriated.”

Some of the lower riparian proprietors are defendants. They filed objections to the issuing of the permit on the ground that under it, if granted, the city of Chadron would interfere with their water rights. A reply to the objections contains a plea of estoppel, to the effect that defendants, Avith knowledge of the facts, without objection or protest, sat quietly by and permitted the city, in furtherance of its purpose to improve its water-works and increase its Avater-supply, to pass ordinances, to adopt plans, to vote bonds, to let contracts, to create indebtedness, and to expend money. Upon a trial of tbe issues tbe proceeding was dismissed, and tbe city bas appealed.

The estoppel pleaded by tbe city is conclusively established by the evidence and prevents defendants from successfully interposing objections to- tbe permit. Clark v. Cambridge & Arapahoe Irrigation & Improvement Co., 15 Neb. 798. No substantial reason for refusing tbe city relief to tbe extent indicated by tbe foregoing excerpt from tbe prayer of the application bas been given. The order of the Department of Public Works, Bureau of Irrigation, Water-Pcwer and Drainage is therefore reversed and tbe proceeding is remanded to that tribunal, with instructions to grant tbe permit.

Reversed.