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Show 350 SUMMARIES OF THE STATE WATER RIGHTS SYSTEMS part of the present law. The section was expressly repealed in the comprehen- sive water administration act of 1895.98 The substance of this section-but without the proviso respecting rights of riparian owners-was reenacted in the 1919 revision of the water rights law, and it is still on the statute books." Although the stream involved in Crawford Company v. Hathaway was a narrow one, ordinarily flowing but a small volume of water, the court considered the relationship of the riparian doctrine to streams along the banks of which meander lines had been run by the Government in its survey of the public lands and ventured the opinion that riparian rights probably would not attach to the waters of such rivers.100 However, final determination was left to be decided in a proper case upon fair presentation of the subject and after opportunity for thorough investigation. Several decades later, in the Osterman case, the court pointed out that the subject matter of Crawford Company v. Hathaway in no manner presented or involved the question of a meandered stream; and that the court in that case had frankly acknowledged that its comments on this question were not necessary to the decision therein, that it was making no final determination of this question, and that it must not be understood as being committed to any proposition not expressly decided.101 The holding on this question in the Osterman case apparently was that, although the river had been meandered by the government surveyors, abutting land owners along the river who obtained title from the Government prior to 1889 also acquired title to its bed, which entitled them to the rights of riparian landowners and to the use of the waters flowing in the stream.102 {Continued) 239 (1895), approved in Crawford Co. v. Hathaway, 67 Nebr. 325, 341-342, 93 N.W. 781 (1903). 98 Nebr. Laws 1895, ch. 69, §68. "Nebr. Laws 1919, ch. 190, p. 850, Rev. Stat. §46-259 (1974). 100Crawford Co. v. Hathaway, 67 Nebr. 325, 350-351, 93 N.W. 781 (1903), overruled on different matters by Wasserburgerv. Coffee, 180 Nebr. 147, 141 N.W. (2d) 738 (1966). These larger meandered streams, the court believed, might be classed as interstate rivers-navigable streams-the waters of which would be held by the State in trust for the people and not subject to riparian claims by owners of contiguous lands. Compare the court's handling, in Clark v. Cambridge & Arapahoe In. & Improvement Co., 45 Nebr. 798, 804-805, 64 N.W. 239 (1895), of a contention that as the original surveys meander along the Republican River, and as the adjoining lands were conveyed by patents which do not include the bed of that stream, the title thereto remained in the Federal Government and, in short, the Republican is, in legal effect, a navigable river. The court held the Republican River to be not navigable within the more widely accepted definition of navigability in law as synonymous with navigability in fact. 101 Osterman v. Central Nebr. Pub. Power & Irr. Dist., 131 Nebr. 356, 362-364, 268 N.W. 334 (1936), referring to Crawford Co. v. Hathaway, 67 Nebr. 325, 375, 93 N.W. 781 (1903). 102 268 N.W. at 336-338, relying in large part upon McBride v. Whitaker, 65 Nebr. 137, 90 N.W. 966 (1902), and its affirmance in 197 U.S. 510 (1904). |