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Show 342 SUMMARIES OF THE STATE WATER RIGHTS SYSTEMS extend the conduit to new places of use is significant. It is reasonable to assume that in consonance therewith, the legislative intent was to authorize desirable changes in conduit line that would not involve changes in locational use. Another statute was enacted in 1895 that pertained to irrigation districts. It included a provision, the extant version of which reads, "It is hereby expressly provided that all water distributed for irrigation purposes shall attach to and follow the tract of land to which it is applied * * *."61 In a case decided in 1951, the Nebraska Supreme Court observed, "While it is true that prior to the Irrigation Act of 1895 a freedom to change the location of the use apparently existed, no such right now exists except by permission" of the State administrative agency. Such requirement, said the court, does not divest the right; it is a valid exercise of the police power of the State in regulation of its public waters.62 The literal language of the quoted opinion may indicate acceptance of the rule that the right to change the place of use with the State agency's permission still exists. However, the court went on to say that any such right in the case of canal company service was always qualified by lack of power in the company to deprive landowners of their dedicated use of water without their express consent. The statutory procedure for bringing lands within an irrigation district for the purpose of sharing its appropriation of water-which is the exclusive procedure for so doing-was not followed in this case. Thus, it was held, outside landowners had acquired no right to use district water, despite any use that they had in fact been making of the water for many years.63 Moreover, in this opinion the court cited a 1941 opinion by the Federal Circuit Court of Appeals, Eighth Circuit. In that opinion, the court said: By act of the Nebraska legislature, all appropriations for irrigation purposes made since 1895 are inseparably appurtenant to specific land, and so follow the land to which the water was intended to be and has been applied.^64' Appropriative rights acquired prior to 1895, how- ever, were not necessarily required to be attached to specific land, and so could, generally speaking, be transferred or assigned for use on other property. * * * But any change in the locational use of previously appropriated waters could, after 1895, only be made' "under the permission and subject to the administrative control of the state irrigation authorities."65 61Nebr. Laws 1895, ch. 70, §9, p. 275, Rev. Stat. §46-122(1974). 62State v. Birdwood In. Dist., 154 Nebr. 52, 62-63, 46 N.W. (2d) 884 (1951). The court apparently was referring to this 1895 act regarding irrigation districts. 63154 Nebr. at 63. 64Citing Nebr. Comp. St. 1929, §46-109, forerunner of Rev. Stat. §46-122 (1974) which is the extant version of the provision of the act of 1895 regarding irrigation districts described above (Laws 1895, ch. 70, §9, p. 276). 65 United States v. Tilley, 124 Fed. (2d) 850, 856-857 (8th Cir. 1941), citing in the latter regard the 1905 decision of the Nebraska Supreme Court discussed at note 60 supra. |
