46-238. Construction of project; time restrictions; failure to comply; forfeiture; extension of time for completion of work; appeal.
(1) Within twelve months after the approval of any application for water for irrigation, power, or other useful purpose by the department, the person making such application shall commence the excavation or construction of the works in which it is intended to divert the water and the actual construction of any water power plant and reservoir or reservoirs for storage in connection therewith and shall vigorously, diligently, and uninterruptedly prosecute such work to completion unless temporarily interrupted by some unavoidable and natural cause. A failure to comply with this section shall work a forfeiture of the appropriation and all rights under the appropriation. The cost of promotion and engineering work shall not be considered a part of the cost of construction, and the progress of the construction work shall be such that one-tenth of the total work shall be completed within one year from the date of approval of the application. The construction of all work required in connection with the proposed project shall be prosecuted in the manner described in this section and with such a force as shall assure the average rate of constructional progress necessary to complete such work or works within the time stipulated in the approval of such application, notwithstanding the ordinary delays and casualties that must be expected and provided against. A failure to carry on the construction of either an irrigation project or a water power project as outlined in this section shall work a forfeiture of the appropriation and all rights under the appropriation, and the department shall cancel such appropriation. The department shall have free access to all records, books, and papers of any irrigation or water power company, shall have the right to go upon the right-of-way and land of any such company, shall inspect the work to see that it is being done according to plans and specifications approved by the department, and shall also keep a record of the cost of construction work when deemed advisable for physical valuation purposes.
(2) The department may extend, for reasonable lengths of time, the time for commencing excavation or construction, completion of works, the application of water to a beneficial use, or any of the other requirements for completing or perfecting an application for flow or storage rights as fixed in the approval of an application or otherwise for the appropriation of water. Such extension may be granted upon a petition to the department and the showing of reasonable cause. The department shall cause a notice of each petition received to be published at the petitioner's expense in at least one newspaper of general circulation in the county or counties of the appropriation once a week for three consecutive weeks. The department shall hold a hearing on the issue of extension on its own motion or if requested by any interested person. If a hearing is held, notice shall be given by certified mail to the applicant, to any person who requested a hearing, and to any person who requests notification of the hearing. The department may grant the extension in the absence of a hearing if no requests for a hearing are received. Any interested person may be made a party to such action. Any party affected by the decision on the petition may appeal directly to the Court of Appeals. Subsequent extensions may be made in the same manner.
Source
Annotations
Extension of completion date for construction of irrigation works was authorized when such extension was made necessary by some unavoidable and natural cause. Hickman v. Loup River P. P. Dist., 176 Neb. 416, 126 N.W.2d 404 (1964).
Where one appropriator was not barred by one-year time limitation and brought action, subsequent appropriators could appear and contest by petition in intervention. Hickman v. Loup River P. P. Dist., 173 Neb. 428, 113 N.W.2d 617 (1962).
Extension of time to complete appropriation was ratified by legislative act. Ainsworth Irr. Dist. v. Bejot, 170 Neb. 257, 102 N.W.2d 429 (1960); Ainsworth Irr. Dist. v. Harms, 170 Neb. 228, 102 N.W.2d 416 (1960).
Time for construction of a project could be extended where temporarily interrupted by unavoidable cause. North Loup River P. P. & I. Dist. v. Loup River P. P. Dist., 162 Neb. 22, 74 N.W.2d 863 (1956).
Property rights in water for irrigation consist not alone in the amount of, but also in the priority of, the appropriation. Vonburg v. Farmers Irr. Dist., 132 Neb. 12, 270 N.W. 835 (1937).
Under former law, adjudication of Department of Roads and Irrigation in proceeding to cancel water right, ordering that work be carried on under this section, was not binding upon other appropriators not parties. Kinnan v. France, 113 Neb. 99, 202 N.W. 452 (1925).