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Show NEBRASKA 345 prescriptive right is not looked on with favor by the law, and it is essential that all elements necessary to give title concur, of which proof must be clear, convincing, and satisfactory.73 In some controversies over water rights, the doctrines of estoppel and laches have been applied.74 The legislature has declared that "all persons" have statutory authority to condemn rights of way over and through the lands of others for ditches, dams, and other necessary works for the storage and conveyance of water for irrigation, water power, and other beneficial uses.75 However, the Nebraska Supreme Court has held 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.76 The decision of the United States Supreme Court in Clark v. Nash11 was distinguished as limited by the highest Court itself to the (1958). See also Oliver v. Thomas, 173 Nebr. 36, 112 N.W. (2d) 525, 528 (1961), regarding adverse possession of real estate, to which the same statute of limitations (§25-202) has been applied. Mentzer v. Dolen, 178 Nebr. 42, 131 N.W. (2d) 671, 674 (1964). The necessary elements for an appropriator to acquire a prescriptive right against another would appear to be similar. Recall, however, as discussed at note 72 supra, that the court has indicated that mere nonuse for the time (10 years) equal to the statutory limitation (§25-202), which is applicable to possession of real property, may result in a forfeiture of an appropriative right. "Kuhlmann v. Platte Valley In. Dist., 166 Nebr. 493, 512-515, 89 N.W. (2d) 768 (1958). See also Worm v. Crowell, 165 Nebr. 713, 721-723, 87 N.W. (2d) 384 (1958). So long as the water supply is sufficient for all who have rights to its use, there is no adverse use; hence no right to divert and dissipate an entire stream can be acquired by making such use thereof as will still leave water for a rightful user. Meng v. Coffee, 67 Nebr. 500, 520-521, 93 N.W. 713 (1903). The nature and extent of an easement arising by prescription are determinable by the use actually made of the property during the running of the statutory period. Paloucek v. Adams, 153 Nebr. 744, 746, 45 N.W. (2d) 895(1951). 74State w.Nielsen, 163 Nebr. 372, 387-389, 79 N.W. (2d) 721 (1956); Clark v. Cambridge & Arapahoe In. & Improvement Co., 45 Nebr. 798, 807-809, 64 N.W. 239 (1895); Enterprise Irr. Dist. v. Tri-State Land Co., 92 Nebr. 121, 156-160, 138 N.W. 171 (1912). Estoppel was denied in McCook In. & Water Power Co. v. Crews, 70 Nebr. 109, 115, 127, 102 N.W. 249 (1905); Kearney Water & Elec. Powers Co. v. Alfalfa Irr. Dist., 97 Nebr; 139, 142-145, 149 N.W. 363 (1914). 75 Nebr. Rev. Stat. § §46-246 to -248 (1974). The right to occupy State lands and to obtain rights of way over highways without compensation is granted to those who wish to construct the water control works provided for in § §46-244 to -250. Id. §46-251. 16Vetter v. Broadhurst, 100 Nebr. 356, 360-363, 160 N.W. 109 (1916), cited with approval in Onstott v. Airdale Ranch & Cattle Co., 129 Nebr. 54, 58-59, 260 N.W. 556 (1935). See also Burger v. City of Beatrice, 181 Nebr. 213, 147 N.W. (2d) 784, 790-795 (1967), regarding condemnation by a city for ground water wells to supply public versus private uses. "Clark v. Nash, 198 U.S. 361, 367-370 (1905), affirming 27 Utah 158, 75 Pac. 371 (1904). |