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Show THE RIPARIAN RIGHT 93 provided the riparian land has not subsequently lost its riparian status by severance.484 But the court concluded that an appropriator may be liable for injury to a recognized riparian right "if, but only if, the harmful appropriation is unreasonable in respect to the [riparian] proprietor."485 The court set forth criteria for determining such reasonableness as well as criteria for determining the appropriateness of an injunction, discussed below under "Unused riparian right." The court concluded that "On the facts of this case the riparian right is superior. Plaintiffs' need for livestock water is greater than defendants' need for irrigation, and the difference is not neutralized by time priorities."486 The court indicated that if riparian lands passed into private ownership after the effective date of the 1895 act, a competing appropriate right "outranks the riparian right under the facts of the present case."487 A "Syllabus by the Court" stated in part: A right to the use of waters under the doctrine of prior appropriation is superior to a competitive riparian right in land which was part of the public domain prior to April 4, 1895, the effective date of the irrigation act of 1895. In respect to competing water claims by an appropriator and by a riparian proprietor, land is considered riparian if by common law standards it was such immediately prior to April 4,1895, and if it has not since lost its riparian status by severance.488 In a 1969 case, the court cited this 1966 case in support of the statement that "Plaintiff does not plead nor prove facts entitling him to vested riparian rights under the common law which might precede April 4, 1895, the effective date of the irrigation act of 1895, which is the cut-off date for the acquisition of riparian rights and the invoking of the law of priority. . . ."489 Following the example set by Oregon in its water code of 1909,490 the legislatures of Kansas in 1945 and South Dakota in 1955-through their rewritten and reenacted water appropriation statutes-undertook to define and to protect as vested rights, the common law riparian rights to the continued use of water to the extent of actual application thereof to beneficial use at the time of enactment, or within a reasonable time thereafter with works then 484 Wasserburger v. Coffee, 180 Nebr. 147, 141 N.W. (2d) 738, 742, 743, 745 (1966), modified in other respects, 180 Nebr. 569, 144 N.W. (2d) 209 (1966). 485141 N.W. (2d) at 745. 486141 N.W. (2d) at 747. Regarding riparian and appropriative rights both of which dated from before the 1895 act, see chapter 6, note 249. 487141 N.W. (2d) at 742. 488141 N.W. (2d) at 740. In the latter regard, see the discussion at notes 262-264 supra. wBrummund v. Vogel, 184 Nebr. 415, 168 N.W. (2d) 24, 27 (1969). This case appears to have added some uncertainty regarding the status of domestic use of water. This is discussed in the State summary for Nebraska in the appendix. 490Oreg. Laws 1909, ch. 216, Rev. Stat. § 539.010 (Supp. 1955). |