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Show 348 SUMMARIES OF THE STATE WATER RIGHTS SYSTEMS land by grant or prescription. So an upper riparian owner who diverts, in excess of his reasonable use and enjoyment, water that would otherwise flow downstream to a lower owner, makes an adverse use of such excess and may acquire a prescriptive right thereto.88 But in the very nature of things, said the court, there can be no such thing as a prescriptive right of a lower riparian owner to receive water of a stream as against upper owners. The water that actually comes down to the lower owner would come in any case; and there is nothing adverse to anyone, in merely receiving it, that could be said to give a prescriptive right entitling him to prevent reasonable use of the water by the upper owner.89 In Crawford Company v. Hathaway, the court made many further observa- tions regarding the nature of the riparian right. Some of them follow: The riparian owner has a right to the flow of water passing through or by his land. This is a property right, inseparably annexed to the soil and passing with it, not as an easement or appurtenance, but as a corporeal hereditament, part and parcel of the land. It is property of which the owner cannot be divested except by some lawful method which would apply alike to all species of real property and appurtenances.90 The riparian owner does not have an absolute and exclusive right to all the streamflow in its natural state, but only the right to the benefit, advantage, and use of the water flowing past his land so far as it is consistent with a like right in all other riparian owners.91 Nor does the law recognize a riparian right in the corpus of the flowing water; it is a usufructuary property interest only in the water as it passes along. The riparian right is limited to a reasonable use of the flowing stream, subject to a like right belonging to all other riparian proprie- tors, none of whom may materially damage other proprietors either upstream or downstream.92 The primary riparian right to use water is for domestic purposes. But if the right is applied to the irrigation of riparian land (the riparian cannot use his right on nonriparian land) the elements of reasonableness and equality of right among riparian owners come into play. 88 67 Nebr. at 374-375. Only a continuous and adverse user of water, for the period of limitation, in addition to what upper riparian owners are entitled to will give them the right to take such excess as against lower proprietors. Meng v. Coffee, 67 Nebr. 500, 520-521, 93 N.W. 713 (1903), decided on the same day as Crawford Co. v. Hathaway. 8967 Nebr. at 374-375. With respect to prescriptive rights to overflow lands upstream, see Kiwanis Club Foundation, Inc. of Lincoln v. Yost, 179 Nebr. 598, 139 N.W. (2d) 359 (1966). The court said, inter alia, "The owner of a dam and the prescriptive right to overflow the land of upper riparian owners may abandon his rights, and may also return the river to its natural state by removing or destroying the dam." 139 N.W. (2d) at 361. 90 67 Nebr. at 340-341, 346-349. 9167 Nebr. at 373. 9267 Nebr. at 351-353. 9367 Nebr. at 353. |