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Show NEBRASKA 333 comprehensive laws were enacted creating a complete and harmonious system for the acquisition of appropriative water rights, determination of respective rights, and orderly administration and distribution of waters. State Administrative Agency The water rights statute provides, "The Department of Water Resources is given jurisdiction over all matters pertaining to water rights for irrigation, power or other useful purposes, and drainage, except as such jurisdiction is specifically limited by statute."6 Various aspects of these functions are discussed under succeeding topics. Appropriation of Water of Watercourses Recognition of doctrine of prior appropriation.-A statute enacted in 1877 authorized the acquisition of rights of way by corporations organized for construction and operation of canals for irrigation or water power purposes, or both, and declared canals constructed for such purposes to be works of internal improvement.7 This was replaced in 1889 by a statute which specifically authorized the appropriation of water, provided procedures therefor, and took cognizance of the preexistence of appropriative water rights.8 The forerunner of the current water appropriation statute was enacted in 1895.9 A compre- hensive measure, it was the first in Nebraska to provide administrative machinery for making appropriations of water, and it superseded all previous legislation relating to this function. Late in the 19th century the Nebraska Supreme Court took note of the water legislation of 1877 and 1889 with respect to various issues;10 and a decision rendered in 1902 involved rights obtained under the statutes and the relative rights of appropriators.11 Then a year later, in its third opinion in the leading case of Crawford Company v. Hathaway, the court thoroughly considered both statutes, as well as the 1895 act then in force.12 The brief 1877 act was held to be an implied recognition of the necessity of appropriating water for irriga- tion in the semiarid portions of the State, and was intended to provide effective means for appropriating and utilizing water therefor. The act of 1889 especially recognized rights acquired by prior appropriation and treated 6Nebr. Rev. Stat. §46-209 (1974). 7Nebr. Laws 1877, p. 168. 8Nebr. Laws 1889, ch. 68. 9Nebr. Laws 1895, ch. 69. 101889 act: Clark v. Cambridge & Arapahoe In. & Improvement Co., 45 Nebr. 798, 805-807, 64 N.W. 239 (1895); Paxton & Hershey Irrigating Canal & Land Co. v. Farmers' & Merchants' In. & Land Co., 45 Nebr. 884, 893-901, 64 N.W. 343 (1895). Both acts: Cummings v. Hyatt, 54 Nebr. 35, 40-42, 74 N.W. 41 i (1898). 11 Farmers' & Merchants'In. Co. v. Cozad In. Co., 65 Nebr. 3, 90 N.W. 951 (1902). "Crawford Co. v. Hathaway, 67 Nebr. 325, 343-350, 357-358, 362, 364, 93 N.W. 781 (1903). For previous opinions, see Crawford Co. v. Hathaway, 60 Nebr. 754, 84 N.W. 271 (1900), on rehearing, 61 Nebr. 317, 85 N.W. 303 (1901). 246-767 O - 77 - 23 |
