Peremptory writ; motion; affidavit required; notice; order to show cause; actions involving irrigation water.
The motion for the writ must be made upon affidavit. The court may require a notice of the application to be given to the adverse party, may grant an order to show cause why it should not be allowed, or may grant the writ without notice. No peremptory writ of mandamus shall be allowed in any case involving the delivery of irrigation water if the Director of Natural Resources, as defined in section 25-1062.01, is a party unless notice by either registered or certified mail has been given, as provided therein, seventy-two hours prior to the time of hearing to the director and division supervisor in the water division created by section 61-212 in which the action is brought and to all appropriators whose rights to the delivery of water might in any manner be affected, of the time and place of the hearing. In such case, any person, natural or artificial, injured or likely to be injured by the granting of such writ, may intervene in such action at any stage of the proceedings and become a party to such litigation.
Source:R.S.1867, Code § 649, p. 508; R.S.1913, § 8275; C.S.1922, § 9228; C.S.1929, § 20-2160; Laws 1941, c. 29, § 10, p. 137; C.S.Supp.,1941, § 20-2160; R.S.1943, § 25-2160; Laws 1957, c. 242, § 20, p. 831; Laws 1957, c. 365, § 6, p. 1235; Laws 2000, LB 900, § 69.
A verification which is a part of an affidavit upon which a writ of mandamus is sought must be positively verified, and a verification based upon mere belief is inadequate. State ex rel. Van Cleave v. City of No. Platte, 213 Neb. 426, 329 N.W.2d 358 (1983).
To sustain an application for mandamus, motion for the writ must be made upon affidavit. Little v. Board of County Commissioners of Cherry County, 179 Neb. 655, 140 N.W.2d 1 (1966).
If no alternative writ has been granted, case may be heard on petition and response thereto. State ex rel. Krieger v. Board of Supervisors of Clay County, 171 Neb. 117, 105 N.W.2d 721 (1960).
Petition must be filed, and writ allowed by judge. State ex rel. Hansen v. Carrico, 86 Neb. 448, 125 N.W. 1110 (1910).
Action is not begun until motion and affidavit, or petition verified positively, filed. State ex rel. Chicago & N. W. Ry. Co. v. Harrington, 78 Neb. 395, 110 N.W. 1016 (1907).
Affidavit upon information and belief is insufficient but is amendable. Steidl v. State ex rel. School Dist. of the City of Crete, 63 Neb. 695, 88 N.W. 853 (1902).
Writ issues upon motion supported by affidavit. State ex rel. Otto v. Commissioners of Lancaster County, 49 Neb. 51, 68 N.W. 336 (1896).
Application must show prior demand and refusal, and facts showing legal duty of respondent. Kemerer v. State ex rel. Garber, 7 Neb. 130 (1878).