238 



THE IBEIGATION AGE. 



gation of Nebraska, and the Board of Irrigation of 

 Nebraska itself, failed to act on the said application 

 of this appellant further than to file and number the 

 same, until the 14th day of February, 1905. 



5th. That on the 25th 'day of November, 1904, 

 the Secretary of the Interior of the United States, 

 through and by the a-bove named John E. Field, filed a 

 so-called amended application with the secretary of 

 the State Board of Irrigation of Nebraska, for per- 

 mission to store all unappropriated waters of the North 

 Platte Eiver in the Pathfinder Beservoir, proposed to 

 be constructed by the Government of the United State? 

 in Central Wyoming, and for water rights for ditches 

 connected therewith, which ditches are designated in 

 said application as follows : "Caspar Canal," "Douglas. 

 Canal," "Goshen Hole Canal," "Fort Laramie Canal," 

 "Interstate Canal," and other canals constructed or 

 to be extended and enlarged. 



6th. That said so-called amended application was 

 filed in the office of the secretary of the State Board of 

 Irrigation of Nebraska, together with the accompany- 

 ing maps, plats and descriptions of land, but no further, 

 or any action was taken thereon until the 14th day 

 of February, 1905. 



7th. That on the 14th day of February, 1905, the 

 matter of the original application, and the so-called 

 amended application of the Secretary of the Interior, 

 and the said application of this appellant, were taken 

 up and considered by the State Board of Irrigation 

 of the State of Nebraska, who, thereupon, made the 

 order, duly certified copy of which is contained in the 

 transcript filed herewith, in the case entitled herein, 

 under date of February 14th, 1905, and by which or- 

 der, the application Number 768, filed by the Secre- 

 tary of the Interior, and as attempted to be amended 

 was allowed, and the date of priority thereof fixed as 

 of September 19, 1904, and the appellant's applica- 

 tion, Number 769, was dismissed. 



The lands to be irrigated under the said so-called 

 amended application of the Secretary of the Interior 

 were lands lying partly within the State of Nebraska, 

 and included all the lands described in appellant's 

 said application. 



Said order of the State Board of Irrigation is 

 hereby referred to and made a part of this petition, to 

 the same extent, and with the like effect as though in- 

 corporated at length. 



8th. Appellant says that the State Board of Irri- 

 gation of Nebraska erred in making said order to the 

 prejudice of said appellant in the several particulars 

 as follows: 



9th. The Stato Board erred in receiving the orig- 

 inal application of the Secretary of the Interior, Num- 

 ber 768, erred in giving it said number, or any num- 

 ber, and in taking any action thereon, save and except 

 to reject the same, for the reason that said application 

 was and is absolutely void, being an application to 

 impound the water of the North Platte Eiver in the 

 State of Wyoming, in the reservoir to be constructed 

 in the interior of the State of Wyoming, and having no 

 reference whatever to any lands in the State of Ne- 

 braska, or to the appropriation of any water from the 

 North Platte Eiver in the State of Nebraska. 



10th. The Board erred in allowing the Secretary 

 of the Interior to amend his application, Number 768, 

 filed September 19, 1904, and to incorporate therein 

 the matters contained in his application of November 



25, 1904, for the reason that said original application 

 was a nullity and not entitled to be filed or acted on 

 in any manner, and could not serve as a basis for any 

 amendment, and for the further reason, that the Stat- 

 utes of the State of Nebraska, relating to irrigation, 

 do not provide for the amendment of applications made 

 to appropriate water from the streams of the State of 

 Nebraska, but only provide and contemplate correc- 

 tions in such applications where errors or omissions in 

 drafting the same have occurred, and do not provide 

 and contemplate any changes or corrections which will 

 have the effect of enlarging the scope, purpose or pur- 

 view of the original application. 



llth. The amendment allowed to be made to the 

 application, Number 768, of the Secretary of the In- 

 terior, is not within the purview of or germane to that 

 application, the original being for leave to impound 

 and store waters of the North Platte Eiver in the 

 State of Wyoming in the Eeservoir to be constructed 

 in the State of Wyoming, and having no reference to 

 the construction of any irrigating ditch or canal in the 

 State of Nebraska, or the irrigating of lands lying 

 within the State of Nebraska. 



12th,' The State Board erred in considering the 

 original application, Number 768, of the Secretary of 

 the Interior, it being shown in and by said appli- 

 cation, and the so-called amended application that the 

 Secretary of the Interior was proceeding in that be- 

 half under the provisions of the Eeclamation Act so- 

 called, passed by the Congress of the United States, 

 entitled : "An Act appropriating the receipts from the 

 sale and disposal of public lands in certain States and 

 Territories to the construction of irrigation works for 

 the reclamation of arid lands." Approved June 17, 

 1902. 



Which said Act provides, in the 5th section thereof, 

 that "No right to the use of water for land in private 

 ownership shall be sold for a tract exceeding one hun- 

 dred and sixty (160) acres to any one land owner, 

 and no such sale shall be made to any land owner 

 unless he be an actual bona fide resident on such land, 

 or occupant thereof, residing in the neighborhood of 

 said land." 



The appellant herein says in that behalf that un- 

 less the quoted provision of Section 5, of said entitled 

 Act, is modified or controlled by the provisions of Sec- 

 tion 8 thereof, there is a conflict between the provisions 

 of said Act of Congress and the provisions of the 

 irrigation laws of the State of Nebraska, inasmuch as 

 under the laws of the State of Nebraska the owner of 

 lands to any amount, whether residing thereon, or 

 otherwise, or occupying the same and residing in the 

 neighborhood thereof, or whether a resident or non- 

 resident, is entitled to have all his lands lying under a 

 ditch irrigated therefrom ; and a large percentage of 

 the land covered by the so-called amended applica- 

 tion of the Secretary of the Interior are lands held in 

 private ownership by appellant and other parties, ap- 

 pellant and many other owners, each holding title to 

 more than one hundred and sixty (160) acres of land 

 embraced within and covered by said so-called amended 

 application of the Secretary of the Interior; and the 

 State Board of Irrigation of Nebraska had no author- 

 ity or jurisdiction to grant a water right to any govern- 

 ment, person, persons or corporation, unable, for any 

 reason, to comply with the laws of the State of Ne- 

 braska, in the use and distribution of the water appro- 



