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Show NEBRASKA 341 and that the right to use the water should attach to the land, and, when the land is sold, be sold with it * * *."s8 A statute enacted in 1889 provided that one entitled to use water "may change the place of diversion if others are not injured by such change and may extend the ditch, flume or aqueduct by which the diversion is made to places beyond that where the first use was made." As amended in 1911, the statute provided that an owner of a ditch, storage reservoir, or other water appropria- tion device "may change the point of diversion, or the line of any flume, ditch or aqueduct if others are not injured thereby," with approval of the State administrative agency. The extant version is similar in wording although the words "if others are not injured thereby" have been omitted.59 A decision of the Nebraska Supreme Court was rendered in 1905 while the 1889 legislative authorization to extend the ditch beyond the first place of the use was still in effect. The supreme court held that the statute was merely declaratory of the law governing changes in place of use as it had previously existed, but that the declaration must be construed together with the act of 1895 with the result that such changes were now under State administrative control.60 Six years later, in 1911, the legislature in amending the 1889 statute expressly added such a requirement regarding State administrative permission. However, in the same amendment it withdrew its express authorization to extend the conduit to new places of use. Conceivably, so far as the matter of changes in locational use is concerned, the present authority to change the point of diversion and the line of a ditch could be broadly interpreted-with complete change in places of use, if the State administrator approved. However, why should the legislature adopt what would be a needlessly roundabout and cryptic way of authorizing changes in place of use? The legislature's explicit action in 1911 in withdrawing express authorization to 58Farmers' Irr. Dist. v. Frank, 72 Nebr. 136, 138-139, 100 N.W. 286 (1904). The court at the outset mentioned as a feature of such a doctrine "that the right to the use of water should never be separated from the land to which it is to be applied." 72 Nebr. at 138. Orders of the Nebraska Department of Water Resources approving petitions to change points of diversion have specifically stated that the right to make such change does not carry with it any right to irrigate lands not entitled to water under the appropriation at the original point of diversion, as was stated in a letter to the author from Dan S. Jones, Jr., Director of the Department, dated September 5, 1963. 59Nebr. Laws 1889, ch. 68, §5; Laws 1911, S.F. 263. The extant version, Nebr. Rev. Stat. §46-250 (1974), reads: "The owner of any ditch, storage reservoir, storage capacity, or other device for appropriating water may, upon petition to the Department of Water Resources, and upon its approval, change the point at which the water under any water appropriation of record is diverted from a natural stream or reservoir, change the line of any flume, ditch, or aqueduct, or change a storage site; Provided, that no reclamation district or power appropriator may change the established return flow point without the approval of the Department of Water Resources." (Emphasis added.) 60Farmers' & Merchants' Irr. Co. v. Gothenburg Water Power & Irr. Co., 73 Nebr. 223, 227-228, 102 N.W. 487 (1905). |
