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Show PROPERTY CHARACTERISTICS 465 acceptance of the rule that the right to change the place of use with the State agency's permission still exists. However, the court went on to say that any such right in the case of canal company service was always qualified by lack of power in the company to deprive landowners of their dedicated use of water without their express consent. The statutory procedure for bringing lands within an irrigation district for the purpose of sharing its appropriation of water-which is the exclusive procedure for so doing-was not followed in this case. Thus, it was held, the outside landowners had acquired no right to the use of the district water, despite any use that they had in fact been making of the water for many years.153 Moreover, in this opinion the court cited a 1941 opinion by the Federal Circuit Court of Appeals, Eighth Circuit. In that opinion, the court said: By act of the Nebraska legislature, all appropriations for irrigation purposes made since 1895 are inseparably appurtenant to specific land, and so follow the land to which the water was intended to be and has been applied.154 Appropriative rights acquired prior to 1895, however, were not necessarily required to be attached to specific land, and so could, generally speaking, be transferred or assigned for use on other property .... But any change in the locational use of previously appropriated waters could, after 1895, only be made "under the permission and subject to the administrative control of the state irrigation authorities."155 Unlike the quoted statement from this 1941 Federal case, the Nebraska Supreme Court in its 1951 decision did not expressly limit its quoted language regarding permissible changes in locational use to appropriative rights acquired prior to 1895. But the appropriative right in dispute had in fact been acquired (in 1893) prior to 1895.156 Moreover, although the statement in the 1951 1S3Id. at 63. 1S4CitingNebr.Comp.St. 1929, § 46-109, forerunner of Nebr. Rev. Stat. § 46-122(1968) which is the extant version of the provision of the act of 1895 regarding irrigation districts described above (Laws 1895, ch. 70, § 9, p. 276). 155 United States v. Tilley, 124 Fed. (2d) 850, 856-857 (8th Cir. 1941), certiorari denied, 316 U. S. 691 (1942), citing in the latter regard the 1905 decision of the Nebraska Supreme Court discussed at note 150, supra. 156State v.BirdwoodIn. Dist., 154 Nebr. 52, 54,46 N. W. (2d) 884 (1951). In an earlier case, Farmers' & Merchants' In. Co. v. Gothenburg Water Power & In. Co., 73 Nebr. 223, 227-228, 102 N. W. 487 (1905), discussed above at note 150, the court spoke of the "irrigation law of 1895." It appears to have been referring entirely or largely to the 1895 statute mentioned above at note 147 (which was similarly so described in Farmers' In. Dist. v. Frank, 72 Nebr. 136, 138-139, 100 N.W. 286 (1904), supra note 148). It perhaps also had in mind this provision of the 1895 act pertaining to irrigation districts. But at any rate, as in the 1951 Nebraska case, the water appropriations in dispute were made prior to 1895. As mentioned above in note 155, this case was cited in the 1941 Federal case which expressly distinguished appropriative rights acquired before 1895. It also was cited, in addition to the 1941 Federal case, in the 1951 Nebraska case. 450-486 O - 72 - 32 |
