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Show REMEDIES FOR INFRINGEMENT 239 sound discretion of the court under the facts of each particular case. Here the public interest was involved. The city had made a large investment in its sewerage plant, and the health of many people would be imperiled by restraining its continued use. Such injury would greatly exceed the private or personal loss and inconvenience resulting therefrom. Judgment denying injunction and awarding damages appropriate to the occasion (for decrease in the market value of the plaintiffs property) was approved by the supreme court. The court noted that the city had statutory authority to condemn private property if necessary.230 (4) Late in the 19th century the Nebraska Supreme Court applied the well-established principle that a party who, by his laches, made it impossible to restrain the completion or use of public works without great injury to his adversary or to the public, will be left to pursue his ordinary legal remedies.231 (5) In an 1892 case, the Montana Supreme Court observed that it is not the law that when none of the water in controversy could, if left in the stream, reach the prior appropriator's point of diversion at a distant point below, the junior upstream appropriator should be enjoined from using the water on the sole ground that the downstream appropriation is prior in right.232 Some State Riparian-Appropriation Situations Nebraska.-(1) The riparian-appropriation interrelationship in Nebraska was profoundly influenced through 1966 by two decisions rendered by the supreme court, practically simultaneously, in 1905. One was a suit by an appropriator to enjoin upstream riparians; the other, a suit by a riparian to enjoin upstream appropriators. Both dealt with remedial rights of riparian and appropriative claimants as against each other, rather than with substantive rights of property. In each of these cases the trial court's judgment was reversed, and on rehearing the former supreme court judgment was reversed and the lower court's action was affirmed. The two decisions on rehearing were rendered on the same day. It is only these decisions on rehearing that are discussed below. (2) In the first case, an irrigation company which had appropriated water under the statutory procedure, and held therefor an adjudicated right, brought action to restrain upstream riparians from depriving it of its water supply. Not until long after the appropriative right had vested did the riparians either divert 23065 S. Dak. at 149-152. Regarding inverse condemnation actions, see "Reverse or Inverse Condemnation," infra. 231 Clark v. Cambridge & Arapahoe In. & Improvement Co., 45 Nebr. 798, 808, 64 N.W. 239 (1895). ^Raymonds. Wimsette, 12 Mont. 551, 560-561, 31 Pac. 537 (1892). In regard to such considerations, see, in chapter 8, "Relative Rights of Senior and Junior Appropriators-Reciprocal Rights and Obligation of Appropriators-Effect of Losses of Water in Stream Channel." |