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Show 522 THE APPROPRIATIVE RIGHT Nebraska. -Two sections in the water rights statute of Nebraska relating to the return of unused water to the stream bear directly upon the question of diverting water out of the watershed in which it originates. (1) One section, originally a part of the 1889 law, provides that appropriated water shall not be turned into any stream other than that from which diverted unless such stream exceeds in width 100 feet, in which event not more than 75 percent of the regular flow shall be taken.412 (2) Another section, enacted in 1919, directs that unused water from an irrigation ditch be returned with as little waste as possible to the stream from which taken or to the Missouri River.413 The Nebraska Supreme Court construed these two sections together as necessarily limiting location of canals "to within the watershed of the stream that furnishes the source of supply." It was held that under the established policy of the State, water for irrigation and power purposes taken from the Platte River or its tributaries may not be lawfully diverted over and beyond the southern watershed of that stream and applied to lands situated without the basin of this river.414 The Nebraska Department of Water Resources approved an application to appropriate water from the Snake River, a tributary of Niobrara River, and to transport it out of the Snake watershed and into that of the Niobrara for irrigation purposes. In affirming this order, the supreme court distinguished the facts in the earlier case, where there was an admitted attempt to transport water to lands wholly outside the Platte River valley basin, and here where to all intents and purposes the Snake and Niobrara comprised one watershed and basin. All unused waters would be returned to the Niobrara, where they would have naturally flowed, and thence to the Missouri River, never out of the overall watershed. Under the circumstances of this case, the statutes were not in conflict.415 Purpose of Use of Water The Use Must be Beneficial So long as the use of water made under an appropriative right is a beneficial one, no distinction is made between appropriations for different useful purposes, and no appropriator for any one useful purpose has any preference 412Nebr. Rev. Stat. § 46-206 (1968). AnId. § 46-265. 414Osterman v. Central Nebraska Public Power & In. Dist., 131 Nebr. 356, 369-370, 268 N. W. 334 (1936). 41sAinsworth In. Dist. v. Bejot, 170 Nebr. 257, 102 N. W. (2d) 416 (1960). In addition, the evidence showed that in various stretches the Snake River exceeded 100 feet in width and that less than 50 percent of the flow would be taken. |