The following opinion on rehearing was filed January 18, 1905. Former -judgment of reversal -vacated and judgment of district court affirmed:
2. Use of Waters: Petition to Enjoin. The allegations of the petition being consistent with the lawful use of the water by the defendants, they will he so construed as against the pleader. 3. -: -: Action foe Damages. Parties who have appropriated water for irrigation purposes pursuant to law, and continued the use of water under such appropriation for more than seven years, can not he enjoined from the continued use of such right by a lower riparian owner whose mill privilege may be injured thereby; his remedy is an action for damages. Sedgwick, J.A general demurrer to the petition was sustained by the court below. The character of the action and the principal allegations of the petition are substantially stated in the former opinion. It appears from the petition that it is sought to enjoin a continuation of acts of the defendants, which have been practiced continuously by them from the commencement of the year 1894, more than seven years before this action was begun. The allegations are that there has been a failure of water in the Republican river, at the mill in question, during the summer months of each year during all that time, and that that failure of water and the damage accruing to the plaintiff therefrom, have been occasioned and produced by the acts of the defendants set forth in the petition; a continuation of which acts it is sought to enjoin. There is no allegation in the petition purporting to explain this delay in commencing these proceedings. This leads us to examine what the petition shows in regard to the nature of these alleged wrongful acts, and the position of the respective parties with relation thereto.
Water for the purpose of irrigation is declared by the statute to be a natural want, and the statute also provides that the water of every natural stream is the property of the public, and is dedicated to the use of the people of the state; and those using water for agricultural purposes shall have preference over those using the same for manufacturing purposes. The statute provides a complete sys*81tem under which the right to use the public waters of the state must be obtained, and it defines, fixes and regulates those rights. The state' board is given control of the public waters of the state and when, upon the application of an individual to appropriate water for agricultural purposes, the board allows the appropriation and duly adjudicates the right to the use of a certain quantity of water, the party who obtains such right, and appropriates and uses the water thereunder, acquires a vestía! interest therein. Canals and other works constructed for irrigation or water power purposes are declared to he works of internal improvement, and the right of eminent domain is extended to persons and corporations engaged in the construuction of such works. In Bronson v. Albion Telephone Co., 07 Neb. 111, the court, in speaking of enjoining the telephone company from injuring private property in the maintenance of its lines, said:
“We do not think public utilities of this kind ought to be suspended until every abutting owner upon the streets or highways to be used has beam duly appeased. If he has been substantially or appreciably injured, an action at law will ordinarily afford him full compensation.”
This reasoning applies with greater force to the situation in this case. This, as is stated in the case last cited, is the rule where the construction of a railway causes damage to abutting owners.
“The abutting owners are not made parties to condemnation proceedings, nor can they enjoin construction of the road; but their remedy is in an action at law for damages. Republican V. R. Co. v. Fellers, 16 Neb. 169; Chicago, K. & N. R. Co. v. Hazels, 26 Neb. 364; Atchison & N. R. Co. v. Boerner, 34 Neb. 240. The same remedy is employed where a city, in improving a street, impairs the easement of the abutting owner. City of Omaha v. Flood. 57 Neb. 124.”
If these defendants had made due application to the state board, and had obtained the adjudica!ion of that board giving them the right to appropriate a given quan*82tity of the public water of the state for irrigation purposes, and, in pursuance of such adjudicated right, had constructed irrigation works, and had, during all that time, actually appropriated and used the amount of water allowed them under such appropriation, in the same manner and to the same extent that they propose to use the water in tlie future, a lower riparian owner could not enjoin the continued use of such water, but must rely upon his action at law to recover such damages, if any, as he might sustain thereby. We think there can be no doubt of the soundness of this principle.
The important question in this case, then is, whether tin* petition which is demurred to contains allegations which bring the case within the prinicple above; discussed. Upon reexamination of the; question we are satisfied that it does. The defendants in the case; arc; Farmers Canal Compan}', Riverside Canal & Irrigation Company, The Trenton Farmers Irrigation Association, Tin; .McCook Irrigation & Water Power Company, and other parties. The petition alleges that all of the defendants, “by reason of dams and ditches, and other appliance's, have diverted the waters of the Republican river and its affluents therefrom, poured the same upon the lands adjacent for irrigation purposes, Avhere they have become- absorbed”; and it is directly alleged that this action is the (anise of tin; plaintiffs injury. The exact quantity of water that each defendant has diverted, and is diverting, from the stream is stated in the petition.
The plaintiff in an equity case must plead the. facts that entitle him to the relief asked. The; petition contains no allegation as to the nature and character of tin* defendant corporations, except those above, quoted. Under the rule that the allegations of a pleading must be construed against the pleader, ive think that the allegations that these corporations diverted the water from the river and turned it upon adjacent lands for irrigation purposes, and that this is done; by them by means of dams and ditches, and other appliances, and that the water is absorbed on these *83lands, and that this has been’ continued for more than seven years, would require some further allegation from the pleader to show that the existing conditions were such as to entitle him to the injunction ashed. The law requires these corporations, before so taking the water for irrigation purposes, to make application to the state board and have their right to do so determined, and the court will not presume that they have not done so in favor of a plaintiff who shows the conditions existing, and fails to show that their use of the water is unlawful. In this .view of the proper construction of this petition, the trial court was right in refusing to allow an injunction, and this disposes of the case. We do not find it necessary to examine the other questions discussed by the commissioner in the former opinion, and are not committed to the propositions there advanced.
For the reasons above given, the judgment entered upon the former hearing is vacated, and the judgment of the district court is affirmed.
Judgment accordingly.