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Show 352 SUMMARIES OF THE STATE WATER RIGHTS SYSTEMS A Nebraska city that was making a noninterfering use of water was treated as an ordinary riparian owner. The question of riparian status of a municipality was not discussed in the court's opinion.110 Interrelationships of the Dual Systems An 1877 statute regarding irrigation and 1889 and 1895 legislation regarding water appropriation are mentioned above under "Appropriation of Water of Watercourses-Recognition of doctrine of prior appropriation." In the earliest cases in which the riparian-appropriation relationship question was considered, the Nebraska Supreme Court adopted the principle that the common law rule with respect to private riparian proprietors prevailed except as modified by statute.111 The opinion in the third decision in Crawford Company v. Hathaway discussed at considerable length principles underlying the relative rights of riparian landowners and appropriators on the same stream.112 The common law riparian doctrine was held to be not inapplicable to conditions prevailing in the whole or in any part of the State, simply because irrigation was necessary in some parts thereof. The right of irrigation was one of the elements of il0Fairbury v. Fairbury Mill & Elevator Co., 123 Nebr. 588, 592-593, 243 N.W. 774 (1932). In this case, a city and a mill were both owners of riparian land, the only city use of the water being for cooling its turbine engines used in connection with the municipal light and water plant, after which the water was returned to the stream. The Nebraska Supreme Court observed that while both parties were riparian landowners, both seemed in this litigation to be relying more on appropriation to beneficial use than on their rights as riparian owners. However, considering their rights as riparian owners, it was held that the city's use was reasonable and not an interference with any use which the downstream mill owner desired to make as a riparian proprietor. In other words, the city was treated as an ordinary riparian owner. Nothing in the court's opinion suggests any question as to the riparian status of a municipality. Under the circumstances of this case, with the city making a noninterfering use of the water, there was perhaps no occasion for that question to arise. 111 Eidemiller Ice Co. v. Guthrie, 42 Nebr. 238, 253, 60 N.W. 717 (1894); Clark v. Cambridge & Arapahoe In. & Improvement Co., 45 Nebr. 798, 806-808, 64 N.W. 239 (1895); Slattery v. Harley, 58 Nebr. 575, 577, 79 N.W. 151 (1899). The court's opinion in the Clark case declared that at common law every riparian proprietor was entitled to the natural streamflow undiminished in quantity and unpolluted in quality, but with the right to a reasonable use by all for the ordinary purposes of life, any unlawful diversion being an actionable wrong. Assuming that the 1889 legislature intended to exclude riparian proprietors from the use of streams of more than a specified width, the court declared this to be a clear invasion of private property rights and hence unlawful. Questions arising under the statutes were not before the court in Slattery v. Harley and were not discussed; but the court held that riparian landowners who wished to justify the right to irrigate must plead and prove the aridity of their lands and the necessity of irrigating them. li2Crawford Co. v. Hathaway, 67 Nebr. 325, 93 N.W. 781 (1903). See also the previous decisions in the same controversy reported in 60 Nebr. 754, 84 N.W. 271 (1900), and 61 Nebr. 317, 85 N.W. 303 (1901). See also Meng v. Coffee, 67 Nebr. 500, 93 N.W. 713 (1903). Regarding floodwaters, see discussion at note 105, supra. |