| OCR Text |
Show NEBRASKA 349 Questions arising between riparians and appropriates as discussed in Craw- ford Company v. Hathaway are noted later under "Interrelationships of the Dual Systems." Several decades after the decision in Crawford Company v. Hathaway was rendered, the Nebraska Supreme Court in the Osterman case had occasion to consider some important phases of the riparian land and water relationship.94 In discussing one phase, the court reiterated the principle that common law rules as to the rights and duties of riparian owners were in force in every part of the State, except as altered by statute. One of these rules was that the use of water by riparian proprietors must be reasonable with regard to the rights of the other riparians. This necessarily implied, said the court, that the common law right to use water was limited strictly to riparian lands, which meant that at common law there was in general no right to transport water out of the watershed.95 Riparian waters.-The water rights statute of 1889 authorizing the appropria- tion of water flowing in a stream, canyon, or ravine contained a proviso that with respect to all streams not more than 50 feet in width, the rights of riparian owners were not affected by the provisions of the act. The proviso was amended in 1893 to reduce the exception from 50 to 20 feet.96 The Nebraska Supreme Court held that as the riparian right is property, and when vested can be destroyed or impaired only in the public interest upon full compensation under the laws relating to eminent domain, this proviso was a clear invasion of private rights and was within the prohibition of the constitution.97 It is not a 94 Osterman v. Central Nebr. Pub. Power & Irr. Dist., 131 Nebr. 356, 365-366, 268 N.W. 334 (1936). 95 268 N.W. at 339-340. The court said that C.S. 1929, §46-620, which is now §46-265, discussed at notes 54-56 supra, "necessarily limits the location of the [irrigation] canals to within the watershed of the stream that furnishes the source of supply." 268 N.W. at 340. The court said that the statute's words "or to the Missouri River" "can have no application to the issue to be determined in the instant case."/d But in a 1966 case, the court, in distinguishing the Osterman case, held that where no damage was done by a transwatershed diversion of percolating ground waters for municipal use, such diversion was reasonable in keeping with the American rule of reasonable use that the court apparently adopted regarding such waters. In re Metropolitan Util Dist. of Omaha, 179 Nebr. 783, 140 N.W. (2d) 626, 637 (1966), discussed at notes 136-137 infra. It is problematical whether or not Wasserburger v. Coffee, 180 Nebr. 147, 141 N.W. (2d) 738 (1966), modified, 144 N.W. (2d) 209 (1966), would apply to the Osterman case on this point. In Wasserburger, the court decided questions concerning the definition of riparian land, as discussed at note 86 supra, but it did not expressly discuss the watershed limitation question nor the Osterman case in this regard. 141 N.W. (2d) at 744-745. This perhaps was because all the lands in dispute apparently were considered to be within the watershed. 141 N.W. (2d) at 741-742. 96 Nebr. Laws 1889, ch. 68, §1, Laws 1893, ch. 40. 91 Clark v. Cambridge & Arapahoe Irr. & improvement Co., 45 Nebr. 798, 807, 64 N.W. (Continued) 246-767 O - 77 - 24 |
