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Show 392 APPROPRIATION OF WATER In a somewhat analogous decision, the New Mexico Supreme Court held that in the water appropriation act of that State the legislature did not intend to give the Territorial Engineer authority to grant permits to be exercised beyond the boundaries of New Mexico-permits, that is, to divert water within Colorado, from a stream flowing into New Mexico, for conveyance into the latter jurisdiction for use there.836 The problems in these cases, then, were matters of statutory construction. (3) Late in the 19th century, Mitchell Irrigation District, with lands situated wholly in Nebraska, located its diversion headgate on the south bank of North Platte River within Wyoming, about one-half mile west of the Wyoming- Nebraska stateline. This was indeed a strategic location of the headworks from the standpoint of Mitchell District. But it led to considerable controversy with neighboring Nebraska irrigation projects, contention with water administrative officials of both States, and litigation in both State and Federal courts. As a result of a decision by the Wyoming Supreme Court, the Mitchell District water right was adjudicated with a priority as of 1890 by the Wyoming State Board of Control.837 Previously, the Wyoming Board had refused to accept proofs because of advice from the Attorney General that it had no jurisdiction over an appropriation solely for the irrigation of lands in another State. However, the supreme court held that the Board had jurisdiction and should act upon the proofs of appropriation. Thus, the priority of the Mitchell appropriation was determined and established under the Wyoming procedure and as a part of the Wyoming schedule of priorities, whereas the rights of Mitchell's neighboring projects east of the stateline-in its own State- were on the Nebraska schedule. Complications ensued. For a long time, Mitchell district was in contention with the water administrative officials of Nebraska over its refusal to comply with headgate closing orders of the State in favor of Nebraska appropriators with earlier priorities. This culminated in a judgment of the Nebraska Supreme Court in the Sorensen case that despite the district's diversion within Wyoming, this appropriator and its appropriation were subject to control of the State of Nebraska as soon as the water was brought into the State. Hence, the Wyoming priority of the Mitchell district was held junior to earlier priorities of appropriators on the North Platte within Nebraska, and its exercise was restricted accordingly.838 Several years later, Mitchell went into the Federal court in Wyoming in an action to require the Wyoming State officials to administer water rights along the North Platte according to the strict order of priorities on the stream section within Wyoming. On appeal, the United States Court of Appeals for the 1 Oth 836 Turley v. Furman, 16 N. Mex. 253, 255-257, 114 Pac. 278 (1911). 631 State ex rel. Mitchell In. Dist. v. Parshall, 22 Wyo. 318, 329-330, 140 Pac. 830 (1914). 838 State ex rel. Sorensen v. Mitchell In. Dist., 129 Nebr. 586, 594, 262 N. W. 543 (1935), certiorari denied, 297 U. S. 723 (1936). |