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Show 212 WATER RIGHTS SYSTEMS PERTAINING TO WATERCOURSES lost its riparian status by severance.248 But the court concluded that an appropriator may be liable for injury to a recognized riparian right "if, but only if, the harmful appropriation is unreasonable in respect to the [riparian] proprietor."249 The court indicated that if riparian lands passed into private ownership after April 4, 1895 a competing appropriative right "outranks the riparian right under the facts of the present case."250 A 1969 case appears to have added some uncertainty regarding the status of domestic use of water.251 Shortly after the 1903 decision in Crawford Company v. Hathaway, two cases were decided which dealt with the remedial rights of riparian claimants rather than with substantive rights or interests in property. In one of these cases, it was held that an appropriator might restrain upstream riparians-who had made no diversion of water until after plaintiffs rights had accrued-from now diverting an injurious quantity from the stream; leaving the defendant riparians to an action to recover damages if any had been sustained.252 In the other case, decided on general demurrer, the court stated that a lower riparian owner could not enjoin continued use of water by an upstream appropriator who had lawfully acquired an appropriative right, constructed works, and put the water to beneficial use, but must rely upon his action to recover such damages, if any, as he might sustain thereby.253 However, in Wasserburger v. MSId. at 742, 743, 745. The court referred to patents that "had been initiated by entries filed." In Osterman v. CentralNebr. Pub. Power & In. Dist., 131 Nebr. 356, 268 N. W. 334, 337 (1936), the court said riparians' titles were "initiated by settlement." Also see above at note 233. 249Id. at 745. The court set forth criteria for determining such reasonableness as well as cri- teria for determining the appropriateness of an injunction. See Nebraska State summary in the appendix. For a critical discussion of the case, see Comment, "The Dual-System of Water Rights in Nebraska," 48 Nebr. Law Rev. 488, 497-498 (1969). Some of the permits of the defendant appropriators bore adjudicated dates prior to the time any of the plaintiff riparians' lands had passed into private ownership from the public domain. This apparently raised the question of the relative status of appropriative and riparian rights where both were initiated prior to the effective date of the 1895 statute and where the appropriative right was earlier in time. In this regard, the court said that "Under the 1895 statute the board of irrigation fixed the priority dates of appropriators who had acquired rights earlier than the effective date of the statute. The board determined appropriative priorities but not riparian rights. . . . The adjudication established the time when the appropriations had been initiated, but time is only one of the elements to be considered in the adjustment of the competing rights. "On the facts of this case the riparian right is superior. Plaintiffs' need for livestock water is greater than defendants' need for irrigation, and the difference is not neutralized by time priorities." 141 N. W. (2d) at 747. 250141 N. W. (2d) at 742. 2S1Brummund v. Vogel, 184 Nebr. 415, 168 N. W. (2d) 24 (1969). This is discussed in the State summary for Nebraska in the appendix. 19 Nebr. State Bar J. 63, 64-69 (1970) includes a report of the Special Committee on Water Resources regarding the alleged uncertainty created by this case and some suggested alternative interpretations of it. The report includes a dissenting view of one of the committee members. 2S2McCook In. Water Power Co. v. Crews, 70 Nebr. 109, 96 N. W. 996 (1903), 102 N. W. 249 (1905). 253Cline v. Stock, 71 Nebr. 70, 98 N. W. 454 (1904), 102 N. W. 265 (1905). |