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Show NEBRASKA 347 to be a common law right applicable alike to all owners of land adjacent to a stream.82 The basis of the riparian doctrine, and an indispensable requisite of it, is actual contact of land and water; proximity or closeness short of contact is unavailing.83 The riparian landowner acquires title to his usufructuary interest in water flowing by or through his land when he acquires the land to which it is an incident.84 The extent of a riparian holding apparently was formerly limited so as not to exceed the area acquired by a single entry or purchase from the Government;85 but this was later disapproved as being arbitrary as between riparians. "The area or size of the parcel is immaterial insofar as its character as riparian land is concerned."86 In the frequently cited case of Crawford Company v. Hathaway, the court stressed the property nature of the riparian right and held that the owner could not be divested of his title except by some procedure common to property rights generally. He cannot be deprived of the right against his will, except for public use and upon payment of due compensation; but the law of eminent domain can apply.87 Furthermore, the right may also be separated from the 82Southern Nebr. Power Co. v. Taylor, 109 Nebr. 683, 686-687, 192 N.W. 317 (1923). 83Stratbucker v. Junge, 153 Nebr. 885, 889, 46 N.W. (2d) 486 (1951). The court referred to its statement in Crawford Co. v. Hathaway, 67 Nebr. 325, 93 N.W. 781, 790 (1903), and to McGinley v. Platte Valley Pub. Power & In. Dist., 132 Nebr. 292, 271 N.W. 864 (1937), in which the statement was repeated that "Land, to be riparian, must have the stream flowing over it or along its borders * * *." In Wasserburger v. Coffee, 180 Nebr. 149, 141 N.W. (2d) 738, 744 (1966), the court said, inter alia, regarding riparian land, "The parcel must include a part of the bed of a watercourse or lake * * *." This statement is inconsistent with the quoted statement from the Crawford case. In Nebraska, riparian landowners ordinarily do own some part of the bed but there may be some instances where this is not the case. See the discussion at notes 100-104 infra, regarding navigable streams and lakes. Suggested ramifications of this matter are presented in Comment, "The Dual-System of Water Rights in Nebraska," 48 Nebr. L. Rev. 488, 492-494 (1969); Fisher, R. J., Harnsberger, R. S., & Oeltjan, J. C, "Rights to Nebraska Streamflows: An Historical Overview With Recommendations," 52 Nebr. L. Rev. 313, 319-320 (1973). "Crawford Co. v. Hathaway, 67 Nebr. 325, 357, 93 N.W. 781 (1903). 85 67 Nebr. at 354-356;McGinley v. Platte Valley Pub. Power & In. Dist, 132 Nebr. 292, 297, 271 N.W. 864 (1937). This is discussed in chapter 10 at notes 269-270. 86 Wasserburger v. Coffee, 180 Nebr. 147, 153-155, 141 N.W. (2d) 738 (1966), modified, with direction to the trial court to amplify the findings to determine whether one plaintiff was inadvertently excluded from the decree, 180 Nebr. 569, 144 N.W. (2d) 209 (1966). However, as against appropriative rights, as discussed at note 127 infra, the riparian right ordinarily attaches "to the smallest tract [of land] held in one claim of title leading from the owner on April 4, 1895 [the effective date of the irrigation act of 1895], to the present owner;" and "if the tract, or part of it, later lost its riparian status as a result of severance, the nonriparian land cannot regain the riparian status." 141 N.W. (2d) at 745. But this apparently does not apply as between persons asserting riparian rights. This is discussed in chapter 10 at notes 262-264 and 277-278. "Crawford Co. v. Hathaway, 67 Nebr. 325, 346-347, 349, 93 N.W. 781 (1903). |