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Show 346 SUMMARIES OF THE STATE WATER RIGHTS SYSTEMS circumstances of that case, having reference to the natural conditions of an arid State such as Utah under which the condemnation of a right of way by an individual for the use of his own land was held to be a public use and its exercise within the legislative power of the State. The Nebraska court pointed out the vast difference between the physical configuration and climatic conditions of Utah and of Nebraska, and held that under local conditions the right of eminent domain rests upon the right to control rates by the public. The statutory sections in question were not declared null and void in toto, for their unquestioned application to irrigation districts and public service com- panies was conceded. What the court intended to declare was that the statutes could not, with due regard to the right of private property, be applied to circumstances in which a merely private interest is subserved. Riparian Doctrine The riparian doctrine is a part of the water law of Nebraska but its practical importance in relation to that of the appropriation doctrine was substantially reduced early in the 20th century as a result of decisions of the Nebraska Supreme Court. This is discussed later under "Interrelationships of the Dual Systems." Recognition of the riparian doctrine.-The existence of the riparian doctrine, as modified by the irrigation statutes, was recognized in several decisions rendered by the supreme court late in the last century.78 The opinions in two decisions rendered in 1903, on the same day, thoroughly considered the law of riparian rights and held it applicable to every part of the State except as altered or supplemented by legislation.79 As previously noted under "Early Uses of Water," the Nebraska Supreme Court in 1936 called attention to the fact that the first settlements in the State were along the eastern borders and in the river valleys, which were not arid lands.80 Accordingly, in 1855, the First General Assembly adopted so much of the common law of England as was applicable, and not inconsistent with the United States Constitution, Nebraska Organic Act, or Territorial laws.81 The supreme court then redeclared the principle expounded in the early cases to the effect that the common law rules, except as altered by statute, were in force in every part of the State. Accrual, nature, and extent of the riparian right. -The riparian right was held 78Eidemiller Ice Co. v. Guthrie, 42 Nebr. 238, 253, 60 N.W. 717 (1894); Clark v. Cambridge & Arapahoe In. & Improvement Co., 45 Nebr. 798, 806, 64 N.W. 239 (1895); Plattsmouth Water Co. v. Smith, 57 Nebr. 579, 584, 78 N.W. 275 (1899); Slattery v. Hurley, 58 Nebr. 575, 576-577, 79 N.W. 151 (1899). 19 Crawford Co. v. Hathaway, 61 Nebr. 325, 339, 342, 93 N.W. 781 (1903), overruled on different matters by Wasserburger v. Coffee, 180 Nebr. 147, 141 N.W. (2d) 738 (1966); Meng v. Coffee, 67 Nebr. 500, 511-512, 93 N.W. 713 (1903). *°Osterman v. Central Nebr. Pub. Power & Irr. Dist., 131 Nebr. 356, 365-366, 268 N.W. 334(1936). 81 Nebr. Laws 1855, p. 328. The extant version is Nebi. Rev. Stat. §49-101 (1974). |