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Show 240 PROTECTION OF WATER RIGHTS IN WATERCOURSES or attempt to divert any of the stream water for irrigation. Under these circumstances, according to the supreme court, the question whether defen- dants suffered any substantial damages to their riparian estates by reason of their being denied the reasonable use of the streamwater was problematical and must depend upon the state of proof. "This right may prove to be so infinitesimal that the law would not take note of it. The damages may be nominal only." The court did not believe that riparians who built irrigation works with full knowledge of existing appropriate rights should receive greater compensation because of their expenditures. The order of injunction was affirmed, and the riparians were remanded to their remedy by action at law for whatever damages, if any, they had actually sustained.233 (3) The second case, which was decided on demurrer, involved a complaint by a lower riparian owner against upstream diversions with request for an injunction. In sustaining the trial court's refusal to grant the riparian an injunction, the Nebraska Supreme Court propounded and adopted the following principle.234 If these defendants had made due application to the state board, and had obtained the adjudication of" that board giving them the right to appropriate a given quantity of the public water of the state for irrigation purposes, and, in pursuance of such adjudicated right, had constructed irrigation works, and had during all that time actually appropriated and used the amount of water allowed them under such appropriation in the same manner and to the same extent that they proposed to use the water in the future, a lower riparian owner could not enjoin the continued use of such water, but must rely upon his action at law to recover such damages, if any, as he might sustain thereby. We think there can be no doubt of the soundness of this principle. (4) In a 1966 case, the Nebraska Supreme Court changed its former rule that riparians could only maintain an action to recover damages against an upstream appropriator. The court held that a lower riparian could enjoin an upstream appropriator who intentionally causes substantial harm to him depending upon a balancing of the interests involved and the appropriateness of injunctive relief. The court considered the following factors as entering the balancing process on the side of the appropriator: (a) the social value which the law attaches to the use for which the appropriation is made; (b) the priority date of the appropriation; and (c) the impracticability of preventing or avoiding the harm. The following factors were considered as entering the balancing process on the side of the riparian owner: (a) the extent of the harm involved; (b) the 233McCook In. & Water Power Co. v. Crews, 70 Nebr. 109, 115, 121-123, 127, 96 N.W. 996 (1903), 102 N.W. 249 (1905). 23ACline v. Stock, 71 Nebr. 70, 71-72, 79, 81-83, 98 N.W. 454 (1904), 102 N.W. 265 (1905). |
