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Show NEBRASKA 337 application to appropriate flowing water when such water is to be so raised.33 The supreme court has held that the granting of an appropriation, including the right to construct a diversion dam, carries with it the incidental right to impound unappropriated water behind the dam in order to effectu- ate its diversion, subject to the rights of other appropriators.34 Special provisions also relate to appropriations of water for the develop- ment of water power.35 The State constitution declares that the use of water for power purposes shall be deemed a public use and shall never be alienated, but may be leased or otherwise developed as prescribed by law.36 The water rights statute includes a requirement that the applicant for a water power appropriation shall enter into a contract with the State, through the Department, for leasing the water from the State for not longer than 50 years, subject to renewal for an additional 50 years. On the expiration of any water power lease the value of improvements made thereunder by any lessee is appraised by the Department, subject to the right of appeal to the district court, the value of improvements as finally determined to be paid by any subsequent lessee to the lessee owning them.37 Any interested party who is dissatisfied with any decision or order of the Department may institute proceedings in the Nebraska Supreme Court to reverse, vacate, or modify the action complained of.38 Restrictions and preferences in appropriation of water. -There is a constitu- tional declaration (1) that the right to appropriate unappropriated waters of natural streams for beneficial use shall never be denied except when de- manded by the public interest; and (2) that priority of appropriation gives the better right as between users of the water for the same purpose, but when the water supply is not enough for all, domestic users have preference over all others and agriculture has preference over manufacturing; but (3) that no in- ferior right may be acquired by a superior right without just compensation.39 As originally enacted, and still extant,40 a similar water rights statute does not contain the exception respecting denial of appropriations "when de- manded by the public interest," nor the final proviso forbidding acquisition of an inferior right by the holder of a superior right without just compensa- tion.41 Other statutory provisions also include similar preferences for 33Id. §46-243. "Plane Valley In. Dist. v. Tilley, 142 Nebr. 122, 128-129, 5 N.W.(2d) 252 (1942). 35Nebr. Rev. Stat. § §46-234 and -238 (1974). 36 Nebr. Const, art. XV, §7. 37Nebr. Rev. Stat. §46-234 (1974). 38 Id. §46-210. 39 Nebr. Const, art. XV, §6. Section 4 of art. XV provides, "The necessity of water for domestic use and for irrigation purposes in the State of Nebraska is hereby declared to be a natural want." 40Nebr. Laws 1895, ch. 69, §43, Rev. Stat. §46-204 (1974). 41 However, in Loup River Pub. Power Dist. v. North Loup River Pub. Power & Irr. Dist., (Continued) |
