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Show 250 PROTECTION OF WATER RIGHTS IN WATERCOURSES In the early 1940's several decisions were rendered by the Supreme Court of Nebraska involving actions for mandamus against State water administrative officers to compel proper enforcement of irrigation laws, and thus to prevent alleged unlawful diversions of water by junior appropriators. It was held that such an action was properly instituted in the county in which the resulting damages occurred.275 The correct rule in Nebraska was stated to be that: "To warrant the issue of mandamus against an officer to compel him to act, (1) the duty must be imposed upon him by law, (2) the duty must still exist at the time the writ is applied for, and (3) the duty to act must be clear." Other facets of the process were: If a default existed at the time the writ of mandamus was applied for, the court would have jurisdiction both to determine relators' right to it even if the default no longer existed when the case came on for trial, and to issue the writ and make it effective as to the future. "But we are obligated to adhere to the rule that a default must exist when the writ is applied for, to properly invoke the extraordinary writ of mandamus." Further, "A writ of mandamus requiring the respondents to enforce all the irrigation laws and appropriation rights of relators is too general in character to invoke coercive processes and subject respondents to summary proceedings for a violation thereof. The issuance of the writ is subject to the sound judicial discretion of the court." The court also noted that the pleadings and evidence in this case failed to disclose a default of any ministerial duty on the part of the defendants and they indicated a willingness to administer the stream waters in accordance with established law.276 ™State ex rel. Cary v. Cochran, 138 Nebr. 163, 166-167, 292 N.W. 239 (1940), reaffirmed, Plate Valley Irr. Dist. v. Tilley, 142 Nebr. 122, 126, 5 N.W. (2d) 252 (1942); Loup River Pub. Power Dist. v. North Loup River Pub. Power & Irr. Dist., 142 Nebr. 141, 145,148, 5 N.W. (2d) 240 (1942). ™State ex rel. Cary v. Cochran, 138 Nebr. 163, 177-178, 292 N.W. 239 (1940). See Plate Valley Irr. Dist. v. Tilley, 142 Nebr. 122,127-128, 5 N.W. (2d) 252 (1942); State v. Board of Supervisors of Clay County, 171 Nebr. 117, 105 N.W. (2d) 721, 726 (1960), which discussed proper procedures in mandamus actions in Nebraska. In the Cochran case, supra, a peremptory writ of mandamus was granted without notice, the chief administrative officer complied with it, and the defendant ignored the administrative order. Shortly afterward the district court on its own motion vacated the erroneous peremptory writ, and the order therefor was affirmed by the supreme court without prejudice to the party which had failed to comply with the erroneous writ. See Plate Valley Irr. Dist. v. Tilley, 142 Nebr. 122,129-130, 5 N.W. (2d) 252 (1942). An anomaly is disclosed in an Oregon case in which certain landowners brought suit for an injunction restraining the stream watermaster from interfering with the alleged water rights of the plaintiffs. Their claim was that the watermaster had been enforcing the provisions of a 1916 court decree, whereas they had obtained prescriptive rights superior to those granted in the decree. In other words, the complaint was not that the watermaster had failed to carry into effect a decree of court (as it would in a mandamus action), but on the contrary that he had been enforcing such decree. Injunction could not issue to accomplish that purpose. Calderwood v. Young, 212 Oreg. 197, 202-206, 315 Pac. (2d) 561 (1957). |
