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Show 334 SUMMARIES OF THE STATE WATER RIGHTS SYSTEMS them as it would any other vested property right. The 1895 law preserved all rights acquired by appropriation prior to its passage.13 The court held that the sections of the statute of 1895 conferring upon the State administrative agency authority to ascertain and determine the amount of past appropriations and to allow further appropriations are not unconstitutional as conferring upon such agency the exercise of judicial functions-when as a matter of fact they are of a quasi-judicial character- but that on the contrary they are a valid exercise of the legislative power.14 In 1966, the Nebraska Supreme Court reexamined the interrelationship between the 1889 appropriation statute and the 1895 statute. The court held that the references to riparian rights in the 1889 statute were declara- tory, and the remaining provisions of that statute were not successful in substituting the prior appropriation doctrine for the riparian doctrine. The court indicated, among other things, that a riparian right to use a water- course "may be superior" to a competing appropriative right if the riparian land passed into private ownership from the public domain prior to April 4, 1895-the effective date of the irrigation act of 1895-but that if the riparian land passed into private ownership after that date, a competing appropriative right "outranks the riparian right under the facts of the present case."15 This is discussed in more detail later under "Interrelationships of the Dual Systems."16 Procedure for appropriating water.-There was no statutory procedure for making appropriations of water in Nebraska prior to enactment of the 1889 law. The appropriation was completed by claiming the right to water, constructing works with which to divert it, diverting and applying the water to some useful purpose, and defending and substantiating the claim when challenged.17 The steps in the first procedure provided in 188918 were posting a notice at the point of intended diversion; recording a copy of the notice in the county clerk's office; commencing construction of the diversion and convey- ance works; prosecuting the work diligently and uninterruptedly to comple- tion unless temporarily interrupted by rain or snow; and conducting the water to the place of intended use. Evidently the act of 1889 was considered as providing an exclusive procedure for making appropriations while it was in effect, for the Nebraska Supreme Court has stated, "If the plaintiff desired "Crawford Co. v. Hathaway, 67 Nebr. 325, 362-364, 93 N.W. 781 (1903), overruled on different matters by Wasserburger v. Coffee, 180 Nebr. 147, 141 N.W.(2d) 738 (1966). 1467 Nebr. at 365-368. 15 Wasserburger v. Coffee, 180 Nebr. 147, 141 N.W.(2d) 738, 742-743 (1966). 16 This includes, at notes 128-129 infra, a discussion of a 1969 case which appears to have added some uncertainty regarding the status of domestic use of water. "Kearney Water & Elec. Powers Co. v. Alfalfa In. Dist., 97 Nebr. 139, 143-144, 149 N.W. 363 (1914). 18 Nebr. Laws 1889, ch. 68. |
