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Show 338 SUMMARIES OF THE STATE WATER RIGHTS SYSTEMS agricultural over water power uses, which include provisions for the con- demnation of water power uses by irrigation divisions of public power and irrigation districts.42 Before the constitution added this limiting proviso, the Nebraska Supreme Court held that the purpose of the statutory preference was to protect the riparian owner in the use of water for drinking, cooking, and stockwatering, and that it did not extend to the furnishing of water to a village for general municipal purposes, nor for flushing sewers at a military post.43 Vested rights of completed appropriations cannot be destroyed without compensation.44 The framers of the State constitution, said the supreme court, clearly intended to provide that water previously appropriated for power purposes may be taken and appropriated for irrigation use upon payment of just compensation-not that water appropriated for power could thereafter be arbitrarily appropriated for irrigation without such compensa- tion.45 If there is no unappropriated water in the proposed source of supply, or if a prior appropriation has been perfected to water the same land proposed to {Continued) 142 Nebr. 141, 5 N.W. (2d) 240, 248 (1942), the court noted, "Section 6 of article XV of the [Nebraska] Constitution, fixing a priority of uses for which public waters may be appropriated, is a self-executing provision and the courts, in the absence of a statutory method, would be obliged to provide the means for enforcing its provisions." 42 Nebr. Rev. Stat. § §70-667 (Supp. 1974) and 70-668 to -672 (1971). In a 1962 case, involving an appeal in a proceeding initiated by Hickman, junior appropriator, against the Loup River Public Power District, the court said, inter alia, "The Statutes of this state give a preferential use to waters for agricultural (irrigation) purposes over a use for power purposes. Section 70-668, R.R.S. 1943. They also provide that no inferior right to the use of waters of this state shall be acquired by a superior right without just compensation therefor to the inferior user. Section 70-669, R.R.S. 1943. It is further provided by section 70-672, R.R.S. 1943, that where the owner of a superior right seeks to acquire water being used for power purposes, and compensation to be paid cannot be agreed upon, the procedure to condemn property shall be exercised in the manner set forth in sections 76-704 to 76-724, R.R.S. 1943. We point out that Hickman has not attempted to condemn any of- the waters appropriated by Loup District. Neither has he agreed with Loup District on the amount of compensation to be paid in lieu of condemnation." Hickman v. Loup River Pub. Power Dist., 173 Nebr. 428, 113 N.W. (2d) 617, 623 (1962). The court did not mention or discuss its earlier opinion in Vetter v. Broadhurst, discussed at note 76 infra, in which it had held, with respect to a statute regarding condemnation of rights of way, that the right of eminent domain cannot be exercised for purely private purposes, such as by an individual for the irrigation of his own land. ^Crawford Co. v. Hathaway, 67 Nebr. 325, 371-372, 93 N.W. 781 (1903), overruled on different matters by Wasserburger v. Coffee, 180 Nebr. 147, 141 N.W. (2d) 738 (1966). 44Kearney Water & Elec. Powers Co. v. Alfalfa In. Dist., 97 Nebr. 139, 146, 149 N.W. 363(1914). 4sLoup River Pub. Power Dist. v. North Loup River Pub. Power & In. Dist., 142 Nebr. 141, 152-153, 5 N.W. (2d) 240 (1942). |
