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Show 462 NEBRASKA ation and provided that "in all streams not more than 50 feet in width the rights of the riparian proprietors are not affected."5 This might have been construed to abrogate all riparian rights except on very small streams. In 1895, a more comprehensive irrigation law, patterned after a Wyoming statute, was enacted.6 Under it, the water of every natural stream not previously appropriated was declared to be the property of the public and subject to appropriation for a beneficial use. As between users for the same purpose, priority in time of appropri- ation was recognized as conferring a prior right, but a preference was accorded to domestic uses which were declared to be of the highest value. The act also established administrative machinery for admin- istering the waters of the State and for acting on applications to appropriate water (State board of irrigation). The 1895 act has re- mained the cornerstone of the present Nebraska irrigation code.7 The effect of the two appropriation statutes on used and unused riparian rights was never very clear in the Nebraska cases. The prob- lem received definitive treatment in the WassSrburger case where the plaintiffs, lower riparian owners on creeks running through their lands, claimed stockwatering rights as against upper appropriators who were diverting the water under State permits. Defendants not only denied the existence of the riparian rights, but suggested that if they did indeed exist, injunctive relief was inappropriate because the equities of the case demanded that their use for irrigation be pre- ferred over stockwatering. That the case was a matter of considerable significance to the panties is evidenced by the fact that over 50,000 acres of land were involved. The dates of the early statutes became important since the plain- tiffs claimed land ownership under some patents which were initiated by entries prior to March 27, 1889. Other claims were initiated after April 4, 1895. Recognizing that riparian rights existed as to patents prior to these statutes and that the appropriation system had been substituted for the riparian, the court pinpointed the issue in this case to be whether the cutoff date for riparian rights was the 1889 act or the 1895 code. Admitting that the provisions of the 1889 act were at cross-purposes and so vague that interpretation was difficult, the court concluded that: (1) The references to riparian rights were declaratory of the common law, i.e., that riparian rights existed in connection with patents issued after that date; and (2) the act failed to substitute the appropriation system for the riparian system. In the court's words, the 1889 act was intended only to "chip away at the common law right." The 1895 date, therefore, was held to be the cutoff date, so that to the extent that the plaintiffs claimed under patents to public domain prior to 1895, they might assert riparian rights.8 The court also held that a constitutional provision adopted 5 Neb. Comp. Stat. (1899), eh. 93a, art. I, sec. 1. "Neb. Comp. Stat. (1895), sees. 5440-5576. 7 See particularly 3-A Neb. Rev. Stat., 1943, sees. 46-201 to 46-282 and supplements (reissue 1968). The current Nebraska statutes will hereafter be referred to simply by section numbers. 8 Crawford Go. v. Hathaway, 67 Neb. 325, 93 N.W. 781 (1903) ; Osterman v. Central Neb. Public Power & Irr. Diat., 131 Neb. 356, 268 N.W. 334 (1936). Cases reaffirmed were Nine Mile Irr. Diat. v. State. 118 Neb. 522, 225 N.W. 679 (1929) ; Southern Neo. Power Co. v. Taylor, 109 Neb. 683, 192 N.W. 317 (1923). |
