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Show THE RIPARIAN RIGHT 51 In a 1905 case, the Kansas Supreme Court imposed a watershed limitation on the extent of riparian land, unlike the Oregon court, as is discussed later. But within this limitation, the court said the principles of the modified riparian doctrine should control, "irrespective of the accidental matter of governmental subdivisions of the land." The court then quoted approvingly the language in the 1901 Oregon case described above.261 In 1966, the Nebraska Supreme Court, without mentioning the 1901 Oregon case, indicated that the area or size of the parcel is immaterial insofar as its character as riparian land is concerned. The court reasoned that restrictions to original entries or to government subdivisions as a basis of determining the extent of the riparian right are arbitrary as such, whether as between riparians or as against competing appropriators.262 These apparently are the guidelines for determining what lands were riparian immediately prior to the effective date of the irrigation act of 1895 (April 4, 1895).263 "However, if the tract, or part of it, later lost its riparian status as a result of severance, the nonriparian land cannot regain the riparian status."264 The latter restriction applies as against competing appropriative rights, which was in issue here, although it apparently would not apply as between persons asserting riparian rights. Relation to Chain of Title Origin of title to riparian land.-Except in Texas, private ownership of lands in the West was derived by patents from the United States, or by patents issued by States to which lands had been granted by the Federal Government, or by grants from sovereigns to whose lands the United States subsequently succeeded. In Texas, Spanish and Mexican grants were made prior to independence from Mexico, and thereafter land grants were made by the Republic of Texas to private parties. On annexation to the United States, the Republic retained for the State all vacant and unappropriated lands lying within its boundaries; since annexation, therefore, the State of Texas has been the source of title to public lands and the grantor thereof to specific organizations and individuals. riparian proprietor is to show that the body of land owned by him borders upon a stream. 261 Clark v.Allaman, 71 Kans. 206, 244-245, 80 Pac. 571 (1905). 262Wasserburger v. Coffee, 180 Nebr. 147, 141 N.W. (2d) 738 (1966), modified with direction to the trial court to amplify the findings to determine whether one plaintiff was inadvertently excluded from the decree, 180 Nebr. 569, 144 N.W. (2d) 209 (1966). This decision overruled Crawford Co. v. Hathaway, 67 Nebr. 325, 353-354, 93 N.W. 781 (1903), on this specific point. 263 The other significance of this date is discussed at notes 484-489 infra. See also note 89 supra. 264141 N.W. (2d) at 745, discussed at note 278 infra. See also Comment, "The Dual-System of Water Rights in Nebraska," 48 Nebr. L. Rev. 488, 494-495 (1969). |
