46-176. Exclusion of lands; hearing; assent of parties; when implied; nonirrigable lands.
The board of directors, at the time or times to which the hearing of such petition may be adjourned, shall proceed to hear the petition and all objections thereto, presented in writing by the persons, showing cause as aforesaid, why the prayer of such petition should not be granted. The failure of any person interested in the district to show cause in writing why the tract or tracts of land mentioned in the petition should not be excluded from such district shall be deemed and taken as an assent by him to the exclusion of such tract or tracts of land, or any part thereof, from the district; and the filing of such petition with such board, as aforesaid, shall be deemed and taken as an assent by each and all of such petitioners to the exclusion from such district of the lands mentioned in the petition, or any part thereof; Provided, in no case shall any land be held by any district or taxed for irrigation purposes which cannot from any natural cause be irrigated thereby.
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Annotations
A determination that land cannot from any natural cause be irrigated requires an examination of the intrinsic characteristics of the land and cannot be based on external factors. Crouse v. Pioneer Irr. Dist., 272 Neb. 276, 719 N.W.2d 722 (2006).
Whether land cannot from any natural cause be irrigated must be determined from the facts in each case. Smith v. Frenchman-Cambridge Irr. Dist., 155 Neb. 270, 51 N.W.2d 376 (1952).
The question of nonirrigability of lands from natural causes can be raised in proceedings to foreclose tax sale certificate. Birdwood Irr. Dist. v. Brodbeck, 148 Neb. 824, 29 N.W.2d 621 (1947).
Government subdivision or other well-defined tract ought not to be included in irrigation district if, for natural causes, it is incapable of irrigation. Wight v. McGuigan, 94 Neb. 358, 143 N.W. 232 (1913).
Where party proceeds to have land detached, in order to defeat jurisdiction of board, it must be proved and found by court that land is nonirrigable, or exempted by statute. Sowerwine v. Central Irr. Dist., 85 Neb. 687, 124 N.W. 118 (1909).