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Show 356 SUMMARIES OF THE STATE WATER RIGHTS SYSTEMS entitling him to vested riparian rights under the common law which might precede April 4, 1895, the effective date of the irrigation act of 1895, which is the cut-off date for the acquisition of riparian rights and the invoking of the law of priority * * *."128 But this case appears to have added some uncertainty regarding the status of domestic use of water.129 12SBrummond\. Vogel, 184 Nebr. 415, 168 N.W. (2d) 24, 27 (1969). 12919 Nebr. State Bar J. 63, 64-69 (1970) includes a report of the Special Committee on Water Resources regarding the alleged uncertainty created by this case and some suggested alternative interpretations of it. The report includes a dissenting view of one of the committee members. In this case the court said, inter alia: "The factual situation presented in this case involves a further application of competing water claims by an upstream appropriator with one who is a downstream domestic user under the guidelines detailed in Wasserburger v. Coffee, 180 Neb. 149, 141 N.W. (2d) 738. "The evidence in this case is undisputed that plaintiff and his immediate predecessors have for many years watered their cattle from the water that came from West Creek which flowed through or on their pasture land. Plaintiff does not plead nor prove facts entitling him to vested riparian rights under the common law which might precede April 4, 1895, the effective date of the irrigation act of 1895, which is the cut-off date for the acquisition of riparian rights and the invoking of the law of priority of application giving the better right as between those using the water for the same or different purposes, and preferring domestic use over other uses in cases of insufficient water. Ss. 46-203 and 46-204, R.R.S. 1943; Wasserburger v. Coffee, supra. Plaintiff concedes that he has never applied for nor secured any water rights from the Department of Water Resources. The defendants are upstream appropriators having applied for and received on August 24, 1967, their priority of appropriation for storage of water for watering livestock and erosion control purposes. We hold that the defendants have the right to have a reasonable use of the waters of West Creek for domestic purposes which includes the watering of their stock even though this may result in the diminution of the water supply arising from a reduced water flow being available for domestic purposes for the plaintiff downstream user. However the intended purpose of the defendants in constructing the dam to fill the pond is not primarily for domestic purposes. The plaintiff testified to an account in the newspaper that it was to serve as a fish pond which would be primarily for recreational purposes, whicle [sic] the defendants' application for authority recites that it is for domestic and soil erosion control purposes, the latter being agricultural in nature. "Article XV, sections 4 to 6, Constitution of Nebraska, incorporates a portion of the irrigation act of 1895 and particularly what is now section 46-204, R.R.S. 1943, in providing as follows:' * * * "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 waters for domestic purposes shall have preference over those claiming it for any other purpose * * *." ' Wasserburger v. Coffee, supra. "Exhibit 11 is the certificate of the Department of Water Resources approving the defendants' application to impound the waters of this tributary to Pleasant Run Creek, but it expressly recites as a condition: 'That the prior rights of all persons who, by compliance with the laws of the State of Nebraska, have acquired a right to the use of the waters in this stream must not be interfered with by the issuance of this permit.' We hold that the right of plaintiff to use water from this stream for domestic purposes is superior to the defendants' right to construct a dam to have a reservoir for either |