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Show NEBRASKA 353 property belonging to the riparian owner, along with the use of the water for domestic and water power purposes.113 Early irrigation legislation did not attempt to abolish the common law rule or to deprive riparians of rights when once vested, but distinctly recognized them and provided for their condemna- tion in construction of irrigation works of internal improvement. The act of 1895 was valid when so construed as not to interfere with vested property rights of riparian proprietors.114 In the Crawford case, the court concluded that the two systems of water rights-riparian and appropriation-could and do exist concurrently in the State. They are not necessarily so in conflict that one must give way when the other comes into existence, but they supplement each other. The court indicated that preference between conflicting claimants should be determined by the time when either right accrues-the riparian when title is taken to the land, and the appropriation when title to the right vests by diversion of the water and application to beneficial use-the answer depending on the circum- stances of each case.115 The act of 1889 abrogated the common law riparian rule as to lands thereafter passing to private ownership and substituted the doctrine of prior appropriation, which had prevailed by custom in the State before there was any statute providing for the appropriation of water. This legislation did not and could not have the effect of abolishing riparian rights which had already accrued; it only prevented the acquisition of such rights in the future. The law of 1895 continued in force the 1889 act only insofar as it abrogated the common law rule for the future. Hence since the effective date of the 1889 act, rights acquired in the streamflows of the State are to be tested and determined by the doctrine of prior appropriation. It was competent for the legislature to do this.116 In the light of acts of Congress and of the Nebraska Legislature, and of connected historical facts, the court found the conclusion irresistible that every appropriator of water who applies it to beneficial use acquires a vested right therein, which gives him a superior title to the use of the water over the riparian proprietor whose right was subsequently acquired, or who lost his once acquired right by either grant or prescription.117 However, in 1966, in Wasserburger v. Coffee, the Nebraska Supreme Court reexamined the interrelationship and relative rights of riparian landowners and appropriators in the same stream.118 The court concluded that the references to riparian rights in the 1889 statute were declaratory, and the remaining provisions of that statute were not successful in substituting the prior appropriation doctrine for the riparian doctrine. The court indicated that a n367Nebr. at 336-341. 11467Nebr. at 341-350. us67Nebr. at 356-357. 11667Nebr. at 357-359. 11767Nebr. at 364. 118 Wasserburger v. Coffee, 180 Nebr. 147, 161-164, 141 N.W. (2d) 738 (1966), modified in other respects, 180 Nebr. 569, 144 N.W. (2d) 209 (1966). |
