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Show NEBRASKA 463 in 1920,9 which affirmed the existence of the appropriation system, did not evidence an intent to impair vested riparian rights acquired prior to 1895. The court then carefully pointed out that land, even though patented prior to 1895, might not necessarily be riparian for present purposes. After examining the various tests which courts in this country have applied to determine what constitutes riparian land, it concluded that in addition to location adjacent to a stream immedi- ately prior to 1895, the land must not since that date have lost its riparian status by a severance. Severance was defined to mean that no part of the land had since become separated from the rest by inter- vening land in the possession of another. Thus, the riparian status would be confined to the smallest tract in the chain of title from 1895 to the present owner.10 If a severance existed in the history of the title so that part of the tract became nonriparian land, the severed land could not regain riparian status if reacquired by the present riparian owner. On this point, the court remanded the case for further evidence. In the last part of the opinion, the court tackled the exceedingly difficult task of reconciling the conflicting interests of the riparians and the appropriators. The problem was sharply pointed up by the fact that the defendants claimed under a number of appropriations, some bearing adjudicated priority dates as early as 1880 and as late as 1961. The court recognized on the one hand that the riparian privilege extends only to reasonable use, and on the other hand that while the appropriators acted intentionally, yet they had expended considerable amounts over the years in perfecting their diversions. In balancing the interests of the parties, it was suggested that the following factors are relevant: (1) The social value which the law attaches to both the riparian and the appropriation uses; (2) the relative dates and priorities of boith types of claimants; (3) the prac- ticability of avoiding the harm by both claimants; and (4) the extent of the harm to the riparian owner as well as the suitability of his use to the particular watercourse. It was also emphasized that the claims of all parties were for private, as distinguished from public, uses. Earlier cases11 denying injunctive relief where one appropriator's use offered a public service were therefore distinguished as irrelevant. On the merits of the case, the court held that the riparians were entitled to an injunction, although the details were to be worked out subsequently by the trial court in accordance with the considerations emphasized in the opinion. After the Wasserburger decision, it seemed clear that riparian rights in Nebraska could be claimed only in connection with land patented prior to 1895. But in 1969, the State Supreme Court handed down a somewhat puzzling decision in Brummund v. Vogel.12 This was a suit brought by a lower riparian owner against an upstream appropriator to enjoin the latter from constructing a dam on the 9 Neb. Const., art. XV, sees. 4-7. 10 The Nebraska cases are discussed in W. Farnham, The Permissible Extent of Riparian Land, 7 Land & Water L. Rev. 31 (1972). u See OUne v. Stock, 71 Neb. 79, 102 N.W. 265 (1905) ; McOook Irr & W.P. Co. v. Orews, 70 Neb. 115, 10,2 N.W. 249 (1905) ; Olark v. Cambridge & Arapahoe Irr. & Imp. Oo.. 45 Neb. 798, 64 N.W. 239 (1895). 12 184 Neb. 415,168 N.W. 2d 24 (1969). |