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Show 464 THE APPROPRIATIVE RIGHT in wording although the words "if others are not injured thereby" have been omitted.149 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 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.150 Six years later, in 1911, the legislature in amending the 1889 statute expressly added such a requirement regarding State administrative per- mission. 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 so interpreted as to "take in a lot of territory"-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 extend the conduit to new places of use is significant. It is reasonable to assume that in consonance therewith, the legislative intent was to authorize desirable changes in conduit line that would not involve changes in locational use. Another statute was enacted in 1895 that pertained to irrigation districts. It included a provision the extant version of which reads: "It is hereby expressly provided that all water distributed for irrigation purposes shall attach to and follow the tract of land to which it is applied . . . ,"151 In a case decided in 1951, the Nebraska Supreme Court observed that "While it is true that prior to the Irrigation Act of 1895 a freedom to change the location of the use apparently existed, no such right now exists except by permission" of the State administrative agency. Such requirement, said the court, does not divest the right; it is a valid exercise of the police power of the State in the regulation of its public waters.152 The literal language of the quoted opinion may indicate 149Nebr. Laws 1889, ch. 68, § 5;Laws 1911, S.F. 263. The extant version, Nebr. Rev.Stat. § 46-250 (1968), 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.] 150Farmers' & Merchants' Irr. Co. v. Gothenburg Water Power & Irr. Co., 73 Nebr. 223, 227-228,102 N. W. 487 (1905). 151 Nebr. Laws 1895, ch. 70, § 9, p. 275, Rev. Stat. § 46-122(1968). 1S2State v. Birdwood Irr. Dist, 154 Nebr. 52, 62-63,46 N. W. (2d) 884 (1951). The court apparently was referring to this 1895 act regarding irrigation districts. |
