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Show NEBRASKA 339 be watered by the applicant, the Department may refuse the application.46 The Department's approval, if granted, is conditioned upon a decision that the appropriation, when perfected, Will not be detrimental to the public welfare; and approval may be given for a shorter period of time for perfecting the appropriation, or for a smaller amount of water or area of land than applied for.47 With respect to this function, the Nebraska Supreme Court has held that the State has such a proprietary interest in the waters of its streams and in their beneficial use that it may transfer a qualified ownership or right of use thereof, and that in doing so it may impose such limitations and conditions as its public policy demands.48 Without doubt it has granted to the State administrative agency the power and duty to determine such questions and to impose such conditions. If the public welfare demands it, the court concluded, the State agency "may grant a qualified and limited right of appropriation and in the beneficial use of the water so appropriated." Some aspects of the Nebraska appropriative right.-lhe residue of unappro- priated water in a stream is subject to appropriation by others, but without interference with prior rights.49 A senior appropriator is entitled to water as against an upstream junior appropriator so long as water in usable quantities can be delivered to him; but he is not entitled to a flow of unusable water. So long as prior rights are not infringed, juniors may use available water within the limitations of their appropriations. These complicated factual situations are to be determined by the State administrative agency, whose findings are final unless unreasonable and arbitrary.50 The water rights statute provides that one who appropriates water from a public stream and returns it thereto may take out the same quantity of water, less a reasonable deduction for losses in transit to be determined by the Department, but not to the prejudice of a prior appropriator.51 Another section authorizes conveyance of water into or along a natural stream and withdrawal of the water minus determined losses "without regard to any prior appropriation of water from such stream," but requires the prior written consent of a majority of the contihguous residents and landowners and imposes liability for damages from any overflow to which this contributes.s2 46Nebr. Rev. Stat. §46-234 (1974). A1Id. §46-235. 48Kirk v. State Board ofIn., 90 Nebr. 627, 631-632, 134 N.W. 167 (1912). A statutory limit on the permissible use of direct streamflow for irrigation, in Nebr. Rev. Stat. §46-231 (1974), is discussed at note 162 infra. "Fairbwy v. Fairbury MUl & Elevator Co., 123 Nebr. 588, 592, 243 N.W. 774 (1932). "State ex rel Cary v. Cochran, 138 Nebr. 163, 172-174, 292 N.W. 239 (1940). See Robinson v.Dawson County In. Co., 142 Nebr. 811, 816-817, 8 N.W. (2d) 179 (1943); Platte Valley In. Dist. v. Tilley, 142 Nebr. 122,130-131, 5 N.W. (2d) 252 (1942). 51 Nebr. Rev. Stat. §46-241(2) (1974). s2Id. §46-252. See Hagadone v. Dawson County In. Co., 136 Nebr. 258, 265, 285 N.W. 600 (1939). |
