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In re Appropriation A-7603, Water Division 2-A.

Broken Bar Nine Living Trust, appellant, 

v. Nebraska Department of Natural

Resources, appellee.

___ N.W.2d ___

Filed August 21, 2015. No. S-14-906.

1. Administrative Law: Statutes: Appeal and Error. In an appeal from 

the Department of Natural Resources, an appellate court’s review of the 

director’s factual determinations is limited to deciding whether such 

determinations are supported by competent and relevant evidence and 

are not arbitrary, capricious, or unreasonable; however, on questions of 

law, which include the meaning of statutes, a reviewing court is obligated to reach its conclusions independent of the legal conclusions made 

by the director.

2. Irrigation: Statutes: Intent: Appeal and Error. Statutory law on the 

subject of irrigation and the decisions of the appellate courts dealing 

therewith show a clear intention to enforce and maintain a rigid economy in the use of the public waters of the state.

3. Waters: Irrigation: Administrative Law. Concerning the administration of public waters, one purpose of the State is to avoid waste and to 

secure the greatest benefit possible from the waters available for appropriation for irrigation purposes.

4. Waters. It is the policy of statutory law to require a continued beneficial 

use of appropriated waters.

5. ____. An appropriator will not be permitted to retain an interest in public waters, to which he has a valid appropriation, which is not put to a 

beneficial use.

6. Waters: Irrigation: Property: Words and Phrases. In the context of 

an appropriation for irrigation, beneficial use requires actual application 

of the water to the land for the purpose of irrigation.

7. Waters: Irrigation: Abandonment. At common law, an appropriation 

of water for irrigation purposes may be lost by nonuse or abandonment.
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8. Administrative Law: Words and Phrases. A decision is arbitrary when 

it is made in disregard of the facts or circumstances and without some 

basis which would lead a reasonable person to the same conclusion.

9. Words and Phrases. A capricious decision is one guided by fancy 

rather than by judgment or settled purpose.

10. Administrative Law: Words and Phrases. The term “unreasonable” 

can be applied to an administrative decision only if the evidence 

presented leaves no room for differences of opinion among reasonable minds.

Appeal from the Department of Natural Resources. Affirmed.

Jovan W. Lausterer, of Bromm, Lindahl, Freeman-Caddy & 

Lausterer, for appellant.

Douglas J. Peterson, Attorney General, Justin D. Lavene, 

and Emily K. Rose for appellee.

Heavican, C.J., Wright, Connolly, McCormack, MillerLerman, and Cassel, JJ.

Miller-Lerman, J.

NATURE OF CASE

Water appropriation A-7603, “Water Division 2-A” 

(Appropriation), was a surface water right to divert a specified 

volume of water from the North Loup River to “be used for 

irrigation purposes only.” The Broken Bar Nine Living Trust 

(Trust), the appellant, held the Appropriation and the lands 

covered by it. The Nebraska Department of Natural Resources 

(Department), the appellee, issued a “Notice of Preliminary 

Determination of Nonuse of [the Appropriation]” to the Trust. 

After a hearing, the Department concluded that the lands designated under the Appropriation had not been irrigated for 

more than 5 consecutive years and that the Trust had failed 

to establish sufficient cause for nonuse under Neb. Rev. Stat. 

§ 46-229.04(4) (Reissue 2010). The Department issued an 

order canceling the Appropriation in its entirety on September 

9, 2014. The Trust appeals. We affirm.
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STATEMENT OF FACTS

The parties generally do not dispute the underlying facts 

of this case. In its “Order of Cancellation” dated September 

9, 2014, the Department made the following findings of fact, 

which are supported by the record:

1. [The Appropriation] is a permit currently shown in 

the Department’s records in the name of the . . . Trust 

with a priority date of May 27, 1955, to divert 1.15 cubic 

feet per second (cfs) of water from the North Loup River 

at points of diversion located in the S1⁄2 of Section 10 and 

the NE1⁄4NE1⁄4 of Section 15, Township 22 North, Range 

20 West of the 6th P.M. in Loup County, for irrigation of 

the following described lands (Exhibit 10):

Township 22 North, Range 20 West of the

6th P.M. in Loup County Acres

Section 10: Lot 5 24.8

 Lot 6 (E1⁄2SW1⁄4) 32.6

 Lot 7 (SW1⁄4SE1⁄4) 16.1

Section 15: NE1⁄4NW1⁄4 3.9

 NW1

⁄4NE1⁄4 33.8

 NE1⁄4NE1⁄4 12.5

 SE1⁄4NE1⁄4 2.4

 TOTAL 126.1

2. Based upon a verified field investigation report, a 

Notice of Preliminary Determination was issued on July 

26, 2013, in accordance with Neb. Rev. Stat. §§ 46-229.02 

and 46-229.03 [(Reissue 2010)] stating that it appeared 

that all of the water appropriation for irrigation of lands 

described above had not been used for more than five 

consecutive years and that the Department knew of no 

reason that constitutes sufficient cause as provided in 

. . . § 46-229.04.

3. A contest was filed on August 23, 2013, by [the] 

legal representative for [the] Trust.

4. Department staff reviewed the contest and on June 

12, 2014, filed a motion for hearing.
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5. Notice of a hearing was issued on June 26, 2014, 

and a corrected notice was mailed on July 1, 2014, in 

accordance with . . . §§ 46-229.02(5) and 46-229.03.

6. A hearing was held in Lincoln, Nebraska, on July 31, 

2014, as provided by . . . § 46-229.04.

7. The Department . . . appeared and was represented 

by its attorney. [A] Department staff member . . . was 

called as a witness. The Department entered several 

exhibits, including a verified field investigation report 

which was entered into evidence as Exhibit 1. The field 

report indicates that all of the lands included under [the 

Appropriation] have not been irrigated for more than 

five consecutive years. [The Department staff member’s] 

testimony showed that there was sufficient water in the 

North Loup River for [the] Appropriation.

8. [The] attorney . . . for [the] Trust [appeared]. In 

his opening statement, [the attorney] stated, “I would 

concur in that I think it’s important for the Director 

and the Department to know that the . . . Trust is not 

arguing that there was agricultural beneficial use of the 

[A]ppropriation in question during the relevant five-year 

time span.”

[The Trust] called . . . one of the trustees . . . as a 

witness. [The trustee’s] testimony described the purpose 

of the [T]rust, which included providing income to support his grandmother during her lifetime. [The trustee] 

also described the rental agreement the [T]rust had with 

its tenant, and the poor shape that the existing irrigation 

equipment was in.

[The Trust] entered several exhibits, including: pictures of the irrigation equipment; lease agreements; an 

unsigned copy of a trust; and the death certificate of . . . 

the recipient of the trust.

Under examination and cross examination, [the 

trustee] marked on Exhibit 9 several areas of land that 
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are included under [the A]ppropriation . . . and that he 

knew had been irrigated in the past. His testimony indicated that two of these areas were last irrigated in 1993, 

and one in 1997 or 1998, and two areas were irrigated 

approximately eight years ago. He stated that the rest 

of the lands under the [A]ppropriation had probably not 

been irrigated. . . .

9. In his opening statement, [the attorney for 

the Trust] stated that the owners were arguing that 

they met the exceptions for nonirrigation under . . . 

§ 46-229.04[(4)](a), (b), (c) and (d). In his closing 

argument, he again reiterated these four subsections 

and described how the Trust had provided testimony 

or evidence relating to the four. [The attorney for the 

Department] also provided his argument in closing relative to the exceptions.

Attached to the original Contest filed by [the Trust] 

was a document marked Exhibit “A” in which the 

Trust asserted that Neb. Rev. Stat. § 46-229 [(Reissue 

2010)] is legally unenforceable as against the Trust 

and the property as a three year non-use rule was 

originally added to the statutory scheme in 1983 and 

later amended to a five year rule in 2004. The Trust 

asserts that the use restriction did not exist when the 

Department issued its [A]ppropriation in 1956 and thus 

it would be unconstitutional for the Department to retroactively apply this rule against the Trust’s vested water 

right. [The Trust] also entered a copy of this document 

as part of Exhibit 10.

In its analysis, the Department first determined that Neb. 

Rev. Stat. § 46-229 (Reissue 2010) is legally enforceable as 

it relates to the Appropriation. The Department quoted In 

re Water Appropriation Nos. 442A, 461, 462, and 485, 210 

Neb. 161, 164, 313 N.W.2d 271, 274 (1981), which case 

states, “‘The [Department of Water Resources] is expressly 
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authorized by statute, after notice and hearing, to forfeit a 

water right where it appears that the water appropriation has 

not been used for some beneficial or useful purpose . . . for 

more than three years. . . .’” The Department stated that it 

must follow the statutes. The Trust does not directly challenge 

this ruling on appeal.

The Department referred to the controlling statutes in its 

order. Section 46-229.04 provides for the cancellation of an 

appropriation after 5 consecutive years of nonuse. Section 

46-229.04(1) states:

(1) At a hearing held pursuant to section 46-229.03, 

the verified field investigation report of an employee 

of the [D]epartment, or such other report or information that is relied upon by the [D]epartment to reach 

the preliminary determination of nonuse, shall be prima 

facie evidence for the forfeiture and annulment of such 

water appropriation. If no person appears at the hearing, 

such water appropriation or unused part thereof shall be 

declared forfeited and annulled. If an interested person 

appears and contests the same, the [D]epartment shall 

hear evidence, and if it appears that such water has not 

been put to a beneficial use or has ceased to be used 

for such purpose for more than five consecutive years, 

the same shall be declared canceled and annulled unless 

the [D]epartment finds that (a) there has been sufficient 

cause for such nonuse as provided for in subsection (2), 

(3), or (4) of this section or (b) subsection (5) or (6) of 

this section applies.

Section 46-229.04(2) generally provides that sufficient 

cause for nonuse shall exist for up to 30 consecutive years if 

such nonuse was caused by the unavailability of water. And 

§ 46-229.04(3) generally provides that sufficient cause for 

nonuse shall exist as a result of inadequate supply or storage 

issues. Subsections (2) and (3) of § 46-229.04 are not implicated in the present case.
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Section 46-229.04(4) provides:

(4) Sufficient cause for nonuse shall be deemed to exist 

for up to fifteen consecutive years if such nonuse was a 

result of one or more of the following:

(a) Federal, state, or local laws, rules, or regulations 

temporarily prevented or restricted such use;

(b) Use of the water was unnecessary because of climatic conditions;

(c) Circumstances were such that a prudent person, following the principles of good husbandry, would not have 

been expected to use the water;

(d) The works, diversions, or other facilities essential 

to use the water were destroyed by a cause not within 

the control of the owner of the appropriation and good 

faith efforts to repair or replace the works, diversions, or 

facilities have been and are being made;

(e) The owner of the appropriation was in active involuntary service in the armed forces of the United States or 

was in active voluntary service during a time of crisis;

(f) Legal proceedings prevented or restricted use of the 

water; or

(g) The land subject to the appropriation is under an 

acreage reserve program or production quota or is otherwise withdrawn from use as required for participation in 

any federal or state program or such land previously was 

under such a program but currently is not under such a 

program and there have been not more than five consecutive years of nonuse on that land since that land was last 

under that program.

The [D]epartment may specify by rule and regulation 

other circumstances that shall be deemed to constitute 

sufficient cause for nonuse for up to fifteen years.

Subsection (5) of § 46-229.04 applies to appropriations held 

by an irrigation district, et cetera; subsection (6) applies to 

temporary appropriations; and subsection (7) applies to issues 
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involving underground storage. These three subsections are 

not involved in this case.

The Department concluded that “the verified field investigation report information is correct, and that the land under [the 

Appropriation] has not been irrigated from the North Loup 

River for more than five consecutive years.” The Department 

noted that two fields of the land at issue were last irrigated 8 

years before and that thus, they had been irrigated in the past 

15 years. The Department further stated that the rest of the 

land under the Appropriation had not been irrigated for more 

than 15 years.

The Department determined that there was no evidence to 

show that the excusable reasons provided in § 46-229.04(2) or 

(3) were applicable in this case for the land that had not been 

irrigated for more than 15 years. Therefore, the Department 

stated that the “part of the [A]ppropriation attached to lands 

not irrigated for more than 15 years should be cancelled as 

provided by . . . § 46-229.04.”

With respect to the two tracts of land that had been irrigated in the past 8 years, the Department determined that 

none of the excusable reasons for nonuse provided in 

§ 46-229.04(4)(a), (b), (c), or (d) were established in this case. 

The Department stated:

In general, it appears that the reason for nonuse was 

that the Trustees chose to lease the property to an individual that wanted to raise cattle and did not want to 

irrigate due to age, difficulty of irrigation, lack of good 

equipment, and the tenant’s intended use of the land.

Based on its determinations, the Department ordered that the 

Appropriation be canceled.

The Trust appeals.

ASSIGNMENTS OF ERROR

Restated, the assignments of error which the Trust has both 

assigned and argued are as follows: (1) The Department’s 

finding that the Appropriation should be canceled is arbitrary, 
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capricious, or unreasonable, and (2) the Department erred 

when it determined that the Appropriation should be canceled 

because it failed to find sufficient cause for the Trust’s nonuse 

as provided by § 46-229.04(4)(a) to (d).

STANDARD OF REVIEW

[1] In an appeal from the Department, an appellate court’s 

review of the director’s factual determinations is limited to 

deciding whether such determinations are supported by competent and relevant evidence and are not arbitrary, capricious, 

or unreasonable; however, on questions of law, which include 

the meaning of statutes, a reviewing court is obligated to reach 

its conclusions independent of the legal conclusions made 

by the director. In re 2007 Appropriations of Niobrara River 

Waters, 288 Neb. 497, 851 N.W.2d 640 (2014).

ANALYSIS

Summary of Relevant Nebraska 

Surface Water Law.

At issue in this case is the Appropriation which authorized 

the Trust to divert up to a specified volume of water from the 

North Loup River to “be used for irrigation purposes only” 

using “the least amount of water necessary for the production of crops in the exercise of good husbandry.” Before 

addressing the specific issues in this appeal, we set forth some 

general principles regarding Nebraska surface water law applicable to this case.

[2,3] The Nebraska Constitution declares the necessity of 

water for domestic use and for irrigation purposes in this 

state to be a natural want. Neb. Const. art. XV, § 4. The 

inadequacy of supply to meet the demands of the public 

requires strict administration to prevent waste. State, ex rel. 

Cary, v. Cochran, 138 Neb. 163, 292 N.W. 239 (1940). We 

have observed:

Our statutory law on the subject of irrigation and the 

decisions of this court dealing therewith show a clear 
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intention to enforce and maintain a rigid economy in the 

use of the public waters of the state. It is the policy of the 

law in all the arid states to compel an economical use of 

the waters of natural streams. One of the very purposes 

of the State in the administration of public waters is to 

avoid waste and to secure the greatest benefit possible 

from the waters available for appropriation for irrigation 

purposes. Farmers Canal Co. v. Frank, 72 Neb. 136, 100 

N.W. 286 [(1904)].

State v. Birdwood Irrigation District, 154 Neb. 52, 55, 46 

N.W.2d 884, 887 (1951).

[4,5] This case involves an appropriation of surface water 

for irrigation. An appropriation right is a right to divert 

unappropriated surface water for beneficial use. Neb. Rev. 

Stat. § 46-204 (Reissue 2010); In re 2007 Appropriations 

of Niobrara River Waters, 278 Neb. 137, 768 N.W.2d 420 

(2009). It is “[t]he policy of the law . . . to require a continued 

beneficial use of appropriated waters . . . .” State v. Birdwood 

Irrigation District, 154 Neb. at 57, 46 N.W.2d at 888. We have 

stated “[a]n appropriator will not be permitted to retain an 

interest in public waters, to which he has a valid appropriation, 

which [is] not put to a beneficial use.” Id. at 58, 46 N.W.2d 

at 889.

[6] In the context of an appropriation for irrigation, we 

have ruled that beneficial use requires “actual application of 

the water to the land for the purpose of irrigation.” Hostetler 

v. State, 203 Neb. 776, 781, 280 N.W.2d 75, 78 (1979). 

Appropriators who fail to comply with the beneficial use 

requirement are subject to cancellation of their rights to use 

the water by the Department pursuant to proceedings brought 

under § 46-229 and Neb. Rev. Stat. §§ 46-229.02 to 46-229.05 

(Reissue 2010).

Appropriation Statutes.

The framework for our consideration of this appeal is found 

in chapter 46 of the Nebraska Revised Statutes pertaining to 
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“Irrigation and Regulation of Water.” In particular, we apply 

§§ 46-229 and 46-229.02 to 46-229.05 which generally cover 

the procedural and substantive law pursuant to which an 

appropriation may be canceled.

Section 46-229 provides:

All appropriations for water must be for a beneficial 

or useful purpose and . . . when the owner of an appropriation or his or her successor in interest ceases to 

use it for such purpose for more than five consecutive 

years, the right may be terminated only by the director [of the Department] pursuant to sections 46-229.02 

to 46-229.05.

Sections 46-229.02 and 46-229.03 generally address the procedural aspects of cancellation and provide the following: 

the procedure by which the Department makes a preliminary 

determination of nonuse, notice of the preliminary determination of nonuse to the owner of the appropriation, the manner 

by which the owner can contest the preliminary determination, 

and the format of the hearing at which the decision whether an 

appropriation should be canceled is made.

Section 46-229.04, considered in detail below, provides the 

substantive principles to be applied to resolve the issue of 

whether the appropriation should be canceled, in whole or in 

part, for nonuse, and § 46-229.05 provides for an appeal in 

accordance with Neb. Rev. Stat. § 61-207 (Reissue 2009).

Regarding § 46-229.04(1), we note that this subsection provides that at the hearing, the verified field investigation report 

preliminarily concluding that there has been nonuse “shall be 

prima facie evidence for the forfeiture and annulment” of the 

appropriation. If an interested person appears, the Department 

shall hear evidence, and

if it appears that such water has not been put to a beneficial use or has ceased to be used for such purpose 

for more than five consecutive years, the same shall be 

declared canceled and annulled unless the [D]epartment 

finds that (a) there has been sufficient cause for such 
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nonuse as provided for in subsection (2), (3), or (4) 

of this section or (b) subsection (5) or (6) of this section applies.

As noted above, § 46-229.04(2) generally provides that 

sufficient cause for nonuse shall exist for up to 30 consecutive years if such nonuse was caused by the unavailability of 

water. And § 46-229.04(3) generally provides that sufficient 

cause for nonuse shall exist as a result of inadequate supply or 

storage issues. Subsections (2) and (3) of § 46-229.04 are not 

implicated in the present case.

The provisions of § 46-229.04(4)(a) to (d) are at the center 

of the Trust’s appeal, and we set them forth again here:

(4) Sufficient cause for nonuse shall be deemed to exist 

for up to fifteen consecutive years if such nonuse was a 

result of one or more of the following:

(a) Federal, state, or local laws, rules, or regulations 

temporarily prevented or restricted such use;

(b) Use of the water was unnecessary because of climatic conditions;

(c) Circumstances were such that a prudent person, following the principles of good husbandry, would not have 

been expected to use the water;

(d) The works, diversions, or other facilities essential 

to use the water were destroyed by a cause not within 

the control of the owner of the appropriation and good 

faith efforts to repair or replace the works, diversions, or 

facilities have been and are being made.

Arbitrary, Capricious, 

or Unreasonable.

As we understand it, the Trust is generally challenging 

the scheme by which an appropriation once conferred can be 

canceled. That is, the Trust claims that the act of cancellation 

is arbitrary, capricious, or unreasonable. We find no merit to 

this claim.

[7] To the extent the Trust contends that once an application for an appropriation has been approved, the appropriation 
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cannot be constitutionally canceled, we reject this argument. 

We have observed that at common law, an appropriation of 

water for irrigation purposes may be lost by nonuse or abandonment. State v. Birdwood Irrigation District, 154 Neb. 52, 

46 N.W.2d 884 (1951). Furthermore, our jurisprudence generally provides that after an appropriation is granted, under the 

Nebraska Constitution and the police powers of the State, the 

Department, after notice and hearing, continues to regulate 

the use of waters of natural rivers and streams. E.g., State, ex 

rel. Cary, v. Cochran, 138 Neb. 163, 292 N.W. 239 (1940). 

Specifically, as relevant to this case, the constitutionality of 

statutes regarding forfeiture of water rights has long been “settled in this state.” See In re Water Appropriation Nos. 442A, 

461, 462, and 485, 210 Neb. 161, 165, 313 N.W.2d 271, 274 

(1981). See, also, State v. Birdwood Irrigation District, supra; 

Dawson County Irrigation Co. v. McMullen, 120 Neb. 245, 

231 N.W. 840 (1930); Kersenbrock v. Boyes, 95 Neb. 407, 

145 N.W. 837 (1914). We believe the rationale of these cases 

based on the necessity for the rigid administration of a scarce 

resource (referred to above in our summary of Nebraska surface water law) remains valid, and we have not been provided 

a reason to overrule these cases.

[8-10] To the extent the Trust contends that the Department’s 

processing of this case and its decision are arbitrary, capricious, or unreasonable, we also reject this argument. We 

addressed such a challenge in In re Water Appropriation 

A-4924, 267 Neb. 430, 434, 674 N.W.2d 788, 791 (2004), 

wherein we stated:

In an appeal from the Department, an appellate court’s 

review of the director’s factual determinations is limited 

to deciding whether such determinations are supported 

by competent and relevant evidence and are not arbitrary, 

capricious, or unreasonable. City of Lincoln v. Central 

Platte NRD, 263 Neb. 141, 638 N.W.2d 839 (2002). A 

decision is arbitrary when it is made in disregard of the 

facts or circumstances and without some basis which 
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would lead a reasonable person to the same conclusion. 

Bethesda Found. v. Buffalo Cty. Bd. of Equal., 263 Neb. 

454, 640 N.W.2d 398 (2002). A capricious decision is 

one guided by fancy rather than by judgment or settled 

purpose. In re Application of Neb. Pub. Serv. Comm., 

260 Neb. 780, 619 N.W.2d 809 (2000). The term “unreasonable” can be applied to an administrative decision 

only if the evidence presented leaves no room for differences of opinion among reasonable minds. Pittman 

v. Sarpy Cty. Bd. of Equal., 258 Neb. 390, 603 N.W.2d 

447 (1999).

The record in this case shows that the field investigation 

report by a Department staff member was introduced at the 

hearing as evidence that the Appropriation should be canceled. Section 46-229.04(1) provides that “the verified field 

investigation report of an employee of the [D]epartment . . . 

shall be prima facie evidence for the forfeiture and annulment 

of such water appropriation.” Under the scheme set out in 

§ 46-229.04(1), the burden then shifts to an interested party 

to present evidence to the Department that the Appropriation 

has been put to a beneficial use during the prior 5 consecutive 

years or that a recognized excuse for nonuse exists.

We have recognized the burden-shifting analysis described 

above in our cases. In In re Water Appropriation A-4924, 

supra, we noted that the Department bore the burden to establish nonuse for the statutory period and that this fact could 

be established by the verified report of the Department. Once 

the report has been presented, then the appropriator must 

show cause why the appropriation should not be terminated. 

That is, the language of the statute clearly indicates that the 

burden is upon the appropriator to present evidence showing 

either that water was taken, contrary to the report filed by the 

Department, or that some excuse existed for nonuse.

In this case, the Trust did not contend that the water had 

been put to a beneficial use for irrigation during the prior 

5 consecutive years. Once it had been established that the 
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Appropriation had not been used for more than 5 consecutive 

years, it was the burden of the interested party, in this case 

the Trust, to present evidence that there was sufficient cause 

for nonuse. See § 46-229.04(1). The procedure followed by 

the Department was not arbitrary, capricious, or unreasonable. 

And as we explain below, the decision itself was supported by 

competent and relevant evidence and was not arbitrary, capricious, or unreasonable.

Evidence Regarding Excuse for Nonuse: 

§ 46-229.04(4)(a) to (d).

The Trust contends that its evidence established sufficient 

cause for nonuse under § 46-229.04(4)(a) to (d) and claims the 

Department erred when it did not so find. The record and applicable law do not support the Trust’s contentions, and as such, 

the decision to cancel the Appropriation was not arbitrary, 

capricious, or unreasonable.

Section 46-229.04(4)(a) generally excuses nonuse where an 

appropriator is temporarily prevented from using its appropriation by federal, state, or local laws, rules, or regulations. 

The Trust refers us to the Uniform Trust Code in general 

and contends that its decision to provide income to the trust 

beneficiary and its decision to lease the land to its tenant prevented it from using Trust funds for repairing irrigation equipment, growing crops, and ultimately using the Appropriation. 

The Department found that these decisions were choices 

made by the Trust, but not impediments as contemplated by 

§ 46-229.04(4)(a). We agree with the Department.

We recognize that administration of the Trust required 

adherence to good faith, see Neb. Rev. Stat. § 30-3866 

(Reissue 2008), and prudence, see Neb. Rev. Stat. §§ 30-3869 

and 30-3884 (Reissue 2008), for the benefit of the beneficiary, but the Trust has not explained how these obligations 

prevented it from making land lease choices which would 

have used and preserved its Appropriation asset. In particular, the 2008 lease between the Trust and its tenant refers 
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to the cattle operation to be run by the tenant on the lands 

associated with the Appropriation; that is, the Trust chose to 

enter into a lease which had the tendency to underutilize the 

Appropriation which had been granted for the “production of 

crops.” The Trust did not establish it was prevented from using 

the Appropriation under trust principles and did not show sufficient cause for nonuse under § 46-229.04(4)(a).

Section 46-229.04(4)(b) generally excuses nonuse where 

an appropriator’s nonuse is explained by the weather. That 

is, “[u]se of the water was unnecessary because of climatic 

conditions.” The Department found the evidence established, 

inter alia, that 2012 was a “drought year,” thus establishing 

the necessity for use for irrigation in 2012 and a circumstance contrary to legitimate nonuse. The evidence included 

precipitation tables and testimony. The Trust offered no evidence to show that it either used its Appropriation in 2012 or 

had sufficient cause for its failure to use its Appropriation in 

the drought year, 2012. The Department did not err when it 

determined that the Trust did not establish sufficient cause for 

nonuse under § 46-229.04(4)(b).

Section 46-229.04(4)(c) generally excuses nonuse where 

an appropriator, following the principles of good husbandry, 

would not have been expected to use the water. The Department 

correctly rejected the Trust’s claim under this subsection. The 

Trust notes that “husbandry” is not defined in the statute, 

and the Trust contends that the word “husbandry” should be 

read to include using the land and water for cattle. Black’s 

Law Dictionary defines “husbandry,” in part, as “[a]griculture or farming; cultivation of the soil for food.” Black’s Law 

Dictionary 859 (10th ed. 2014). Although we do not necessarily endorse the Trust’s reading of “husbandry” as including 

cattle operations, the more fundamental reason we reject the 

Trust’s interpretation of the statute is that its construction of 

§ 46-229.04(4)(c) is not a sensible one. See Walton v. Patil, 

279 Neb. 974, 983, 783 N.W.2d 438, 445-46 (2010) (stating 

that “in construing a statute, appellate courts are guided by 
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the presumption that the Legislature intended a sensible rather 

than absurd result in enacting the statute”).

The Trust asserts that properly running a cattle operation 

invariably underutilizes an appropriation. The Trust refers us to 

the record which shows that the tenant used the property and 

minimal water in a cow-calf operation; the Trust asserts that 

in doing so, it followed the principles of good husbandry, thus 

excusing nonuse. We reject the Trust’s argument.

It is fundamental under §§ 46-229 and 46-229.04 that the 

appropriation for water must be put to a beneficial use and 

that if it has ceased to be so used for more than 5 consecutive 

years, the appropriation is at risk of cancellation. As relevant 

to this case, we have stated that “beneficial use requires, in 

the case of an appropriation for irrigation purposes, actual 

application of the water to the land for the purpose of irrigation.” Hostetler v. State, 203 Neb. 776, 781, 280 N.W.2d 75, 

78 (1979).

We have previously rejected an argument similar to that 

proffered by the Trust. In Hostetler, supra, we rejected the 

contention that the use of creek water subject to an appropriation for irrigation to water cattle was a use within the meaning of the appropriation. It would be an illogical reading of 

§ 46-229.04(4)(c) to construe the statute in a manner which 

would endorse an outcome antithetical to the strict administration of the surface water of this state. See State, ex rel. Cary, v. 

Cochran, 138 Neb. 163, 292 N.W. 239 (1940). The interpretation urged upon us by the Trust illustrates the point.

We reject the Trust’s statutory construction which would 

effectively have us endorse a nonpermitted use of some amount 

of water as an excuse for nonuse of the one described in the 

appropriation. We do not agree with the Trust’s reading of 

§ 46-229.04(4)(c) and conclude that the Department did not err 

when it determined that the Trust did not establish sufficient 

cause for nonuse under § 46-229.04(4)(c).

Section 46-229.04(4)(d) generally excuses nonuse where the 

works or equipment essential to use the water were destroyed 
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by a cause not within the control of the appropriator and good 

faith efforts to repair “have been and are being made.” As the 

Department correctly found, the evidence upon which the Trust 

relies is insufficient.

The Trust refers us to evidence that a “Vermeer boom” was 

destroyed in a windstorm “prior to 2000” and that it obtained 

quotes for the costs of replacing the nonfunctioning irrigation 

equipment. Nothing in the record suggests meaningful good 

faith efforts were made to repair such equipment after 2000, 

and the quotes to which the Trust refers were obtained after the 

Department issued its “Preliminary Determination of Nonuse,” 

and there is no evidence that repairs have been pursued. 

In an earlier case, we found unpersuasive the “diversion of 

some amount of water” only after the Department’s inspection 

showed nonuse for the statutory period. See Hostetler v. State, 

203 Neb. at 781, 280 N.W.2d at 78. Similarly, we agree with 

the Department that obtaining a quote without more only after 

the “Preliminary Determination of Nonuse” was issued did not 

establish good faith efforts at repair or sufficient cause for nonuse under § 46-229.04(4)(d).

CONCLUSION

For the reasons explained above, we determine the Trust 

failed to establish sufficient cause to excuse its nonuse of the 

Appropriation and we therefore affirm the Department’s “Order 

of Cancellation.”

Affirmed.

Stephan, J., not participating.