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Show NEBRASKA 355 ..lit our broad outline of a system to the specific facts before us."124 The court concluded, "On the facts of this case the riparian right is superior. Plaintiffs' [riparians] need for livestock water is greater than defendants' [appropriators] need for irrigation, and the difference is not neutralized by time priorities."12S The court indicated that if the riparian land passed into private ownership after the effective date of the 1895 act, a competing appropriative right "outranks the riparian right under the facts of the present case."126 A "Syllabus by the Court" stated in part: A right to the use of waters under the doctrine of prior appropriation is superior to a competitive riparian right in land which was part of the public domain prior to April 4, 1895, the effective date of the irrigation act of 1895. In respect to competing water claims by an appropriator and by a riparian proprietor, land is considered riparian if by common law standards it was such immediately prior to April 4, 1895, and if it has not since lost its riparian status by severance.127 In a 1969 case, Brummond v. Vogel, the court cited the 1966 Wasseburger case in support of the statement that "Plaintiff does not plead nor prove facts I24141N.W. (2d)at745. The court preceded these statements with the following observation: "An incompati- bility of riparian rights and appropriative rights is undoubtable. The common law test of reasonable use places little emphasis upon the time when the use was initiated. * * * Under the appropriation doctrine, priority in time gives the better right between users for the same purpose. The flexibility of the one test opposes the rigidity of the other. "We cannot synthesize the two doctrines in one decision." Id. 125141 N.W. (2d) at 747. Some of the permits of the defendant appropriators bore adjudicated dates prior to the time any of the plaintiff riparians' lands had passed into private ownership from the public domain. This apparently raised the question of the relative status of appropriative and riparian rights where both were initiated prior to the effective date of the 1895 statute and where the appropriative right was earlier in time. In this regard, the court said, "Under the 1895 statute the board of irrigation fixed the priority dates of appropriators who had acquired rights earlier than the effective date of the statute. The board determined appropriative priorities but not riparian rights. * * * The adjudication established the time when the appropriations had been initiated, but time is only one of the elements to be considered in the adjustment of the competing rights. "[As stated above, on] the facts of this case the riparian right is superior. Plaintiffs' need for livestock water is greater than defendants' need for irrigation, and the difference is not neutralized by time priorities." Id. 126141 N.W. (2d) at 742. 127141 N.W. (2d) at 740. In this regard, see also the discussion at note 120 supra. The court indicated that the riparian right ordinarily attaches, as between competing appropriative and riparian rights, to "the smallest tract [of land] held in one chain of title leading from the owner on April 4, 1895, to the present owner." 141 N.W. (2d) at 745. (But this apparently does not apply as between competing riparian rights. See note 86 supra.) |