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Show 464 NEBRASKA watercourse which would diminish the amount of water available to the riparian owner for stockwatering purposes. Evidence showed that while defendant's dam would be used in part for domestic purposes, it was primarily intended for agricultural (soil erosion control) and recreational (fishing) purposes. The court admitted that the riparian owner claimed no riparian rights based upon pre-1895 grants and that he had secured no permit from the department of water re- sources. Despite these admissions, the court held that the plaintiff had riparian rights for a reasonable amount of water for domestic pur- poses (stockwatering), which were prior to defendant's permit for agricultural and recreational purposes. The court relied upon a con- stitutional provision which gave domestic uses a preference over other water uses.13 The decision seems to revive the doctrine of ripar- ian rights in Nebraska in direct contradiction to the holding of the court in the Wasserburger case, which confined riparian rights to pre-1895 grants. 2. State Organizational Structure for Water Administration and Control 2.1 Administration of Water Rights The department of water resources was established as successor to the earlier board of highways and irrigation. In addition to super- visory powers over all waters of the State, the department acts upon all applications to appropriate or store water.14 If unappropriated water exists, the department of water resources may approve the application if such application and appropriation when perfected is not otherwise detrimental to the public welfare.15 When the water right is perfected, it relates back to the date of the filing of the application, which is its priority date.16 If the applica- tion is rejected or if less water is awarded than is requested in the application, the aggrieved party is entitled to a hearing before the department and to direct review by the supreme court.17 The statutes also provide for an adjudication procedure in which the department may initiate an administrative proceeding to forfeit water rights for nonuse for a period of 3 years.18 All adjudications after a hearing are final unless appealed. M Neb. Const., art. XV, sees. 4-6. After declaring that the use of water for domestic and irrigation purposes constitute a natural want, the amendment provided that the "use of the water of every natural stream • * * is hereby dedicated to the people of the State for beneficial purposes • • ?" Section 6 then provides: "The right to divert unappropriated waters of every natural stream for beneficial use shall never be denied except when such denial is demanded by the public interest. Priority of appropriation shall give the better right as between those using the water for the same purpose, but when the waters of any natural stream are not sufficient for the use of all those desiring to use the same, those using the water for domestic purposes shall have preference over those claiming it for any other purpose, and those using the water for agricultural purposes shall have the preference over those using the same for manufacturing purposes. Provided, no inferior right to the use of the waters of this State shall tie acquired by a superior right without just compensation therefor to the Inferior user." It would seem that there is nothing in this section that affirms the existence of riparian rights in all natural streams of the State. The section is simply declaratory of the 1895 legislation. 14 Sees. 46-208 to 46-214. See Yeutter, note 2, p. 1, at 19-25. 15 Sec. 46-235. 18 Sec. 46-205. 17 Sec. 46-238. 18 Sees. 46-226 to 46-232. |