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Show 344 SUMMARIES OF THE STATE WATER RIGHTS SYSTEMS statute was upheld by the Nebraska Supreme Court.69 The procedure was validly applied to applications to appropriate water made before the enactment as well as after it.70 In addition to this statutory procedure for forfeiture of water rights, the Nebraska Supreme Court has recognized another method of forfeiture-nonuse for a time equal to the statutory limitation upon actions to recover the possession of real property (10 years).71 A prescriptive water right may be acquired against one appropriator by another by his adverse use of water for the statutory period of limitations applicable to adverse possession of real property (10 years).72 However, a (Continued) granting of the application * * * is a conditional right which becomes a perfected and completed appropriation only when the works are completed and the waters put to a beneficial use in compliance with the conditions and limitations of the grant." 162 Nebr. at 28.) The court said: "[W] e take note of the fact that the irrigation law of this state was substantially changed in 1895 in that the department was then charged with the duty of adjudicating the rights of appropriators. Laws 1895, c. 69, § 16, p. 248. It is evident, also, that there were numerous applications not perfected and many appropriations which had been abandoned that required legislative attention. The Legislature in 1911 directed the department to proceed to adjudicate all rights of appropriators which had not been adjudicated, and directed the department to forfeit and annul all appropriation rights where it appeared that any water appropriation had not been used for some beneficial or useful purpose, or having been so used at one time had ceased to be used for such purpose for more than 3 years. Laws 1911, c. 153, §17, p. 503. We do not construe this to mean that the statute requires that an appropriator is necessarily limited to such period of 3 years in putting appropriated waters to beneficial use under a new application. We think the time in which such waters must be put to a beneficial use must be determined from the terms, conditions, and limitations of the adjudicated appropriation right." 162 Nebr. at 27-28. [Regarding extant provisions concerning the perfection of water appropriations, see Nebr. Rev. Stat. §46-238 (1974).] For some subsequent discussions of the statute, see State v. Neilsen, 163 Nebr. 372, 380-387, 79 N.W. (2d) 721 (1956); Hickman v. Loup River Pub. Power Dist., 176 Nebr. 416, 126 N.W. (2d) 404, 407 (1964). 69State v. BirdwoodIn. Dist., 154 Nebr. 52, 56-57, 46 N.W. (2d) 884 (1951); Dawson County In. Co. \.McMullen, 120 Nebr. 245, 247-251, 231 N.W. 840 (1930). 70Kersenbrock v. Boyes, 95 Nebr. 407, 409-411, 145 N.W. 837 (1914); State v. Birdwood In. Dist, 154 Nebr. 52, 46 N.W. (2d) 884, 888 (1951). 71 State v. Nielsen, 163 Nebr. 372, 381-382, 79 N.W. (2d) 721 (1956); Farmers'In. Dist. v. Frank, 72 Nebr. 136, 156, 100 N.W. 286 (1904). The pertinent statute of limitations is Nebr. Rev. Stat. §25-202 (1964). 72See Maranville Ditch Co. v. Kilpatrick Bros. Co., 100 Nebr. 371, 372, 160 N.W. 81 (1916); Kilpatrick Bros. Co. v. Frenchman Valley In. Dist., 101 Nebr. 155, 156, 162 N.W. 422 (1917). The pertinent statute of limitations is Nebr. Rev. Stat. §25-202 (1964). In a case concerning a prescriptive right to discharge surplus irrigation waters into a creek, the'Nebraska Supreme Court indicated that in such a case, as well as in the case of adverse possession of land, there must be continuous and uninterrupted, open, exclusive, and notorious adverse use under claim of right for the statutory period. Kuhlmann v. Platte Valley In. Dist., 166 Nebr. 493, 89 N.W. (2d) 768, 780-781 |
