46-238 Construction of project; time restrictions; failure to comply; forfeiture; extension of time for completion of work; appeal. - Nebraska Statutes

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 approvalof any application for water for irrigation, power, or other useful purposeby the department, the person making such application shall commence the excavationor construction of the works in which it is intended to divert the water andthe actual construction of any water power plant and reservoir or reservoirsfor storage in connection therewith and shall vigorously, diligently, anduninterruptedly prosecute such work to completion unless temporarily interruptedby some unavoidable and natural cause. A failure to comply with this sectionshall work a forfeiture of the appropriation and all rights under the appropriation.The cost of promotion and engineering work shall not be considered a partof the cost of construction, and the progress of the construction work shallbe such that one-tenth of the total work shall be completed within one yearfrom the date of approval of the application. The construction of all workrequired in connection with the proposed project shall be prosecuted in themanner described in this section and with such a force as shall assure theaverage rate of constructional progress necessary to complete such work orworks within the time stipulated in the approval of such application, notwithstandingthe ordinary delays and casualties that must be expected and provided against.A failure to carry on the construction of either an irrigation project ora water power project as outlined in this section shall work a forfeitureof the appropriation and all rights under the appropriation, and the departmentshall cancel such appropriation. The department shall have free access toall records, books, and papers of any irrigation or water power company, shallhave the right to go upon the right-of-way and land of any such company, shallinspect the work to see that it is being done according to plans and specificationsapproved by the department, and shall also keep a record of the cost of constructionwork when deemed advisable for physical valuation purposes.(2) The department may extend, for reasonable lengths of time, the timefor commencing excavation orconstruction, completion of works, the application of water toa beneficial use, or any of the other requirements for completing or perfectingan application for flow or storage rights as fixed in the approval of an applicationor otherwise for the appropriation of water. Such extension may be grantedupon a petition to the department and the showing of reasonable cause. Thedepartment shall cause a notice of each petition received to be publishedat the petitioner's expense in at least one newspaper of general circulationin the county or counties of the appropriation once a week for three consecutiveweeks. The department shall hold a hearing on the issue of extension on itsown 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 whorequested 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 requestsfor a hearing are received. Any interested person may be made a party to suchaction. Any party affected by the decision on the petition may appeal directlyto the Court of Appeals. Subsequent extensions may be made in the same manner. SourceLaws 1919, c. 190, tit. VII, art. V, div. 2, § 13, p. 838; C.S.1922, § 8432; C.S.1929, § 81-6313; R.S.1943, § 46-238; Laws 1957, c. 198, § 2, p. 698; Laws 1979, LB 545, § 1; Laws 1980, LB 649, § 1; Laws 1987, LB 140, § 8; Laws 1991, LB 278, § 1; Laws 1991, LB 732, § 107; Laws 2000, LB 900, § 113; Laws 2009, LB209, § 1.AnnotationsExtension 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. Harms, 170 Neb. 228, 102 N.W.2d 416 (1960); Ainsworth Irr. Dist. v. Bejot, 170 Neb. 257, 102 N.W.2d 429 (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).