State ex rel. Cary v. Cochran

138 Neb. 163, 292 N.W. 239 (1940)

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State ex rel. Cary v. Cochran

Nebraska Supreme Court
138 Neb. 163, 292 N.W. 239 (1940)

Facts

Central Power Company (Central) (plaintiff) had appropriative water rights on the Platte River for a minimum flow of 162 second-feet (sf) of water to support power operations at the head of the Kearney Canal with an established priority date of 1882. Central (joined by various irrigation water users on the Kearney Canal) filed a mandamus action to require the state bureau of irrigation (the bureau) (defendant) to enforce its water rights. Central contended that water appropriators upstream with junior rights—i.e., later in time—were diverting water to Central’s detriment. The broad and shallow nature of the Platte River causes the river to suffer a substantial loss of water along its course due to evaporation and percolation. As a result, the river required 700 sf of water at the North Platte to deliver Central’s 162 sf of water at the head of the Kearney Canal. At times, the North Platte’s water flow was insufficient to provide any water flow at the Kearney Canal head. The bureau contended that it acted appropriately in allowing the water diversion by the junior water-right holders because, at the times in question, any attempt to maintain the water flow for Central’s use was futile due to the evaporation and percolation. The trial court denied the writ of mandamus, and Central appealed to the Nebraska Supreme Court.

Rule of Law

Issue

Holding and Reasoning (Carter, J.)

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