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Show 354 SUMMARIES OF THE STATE WATER RIGHTS SYSTEMS riparian right to use a watercourse "may be superior" to a competing appropriative right if the riparian land passed into private ownership from the public domain prior to April 4, 1895, the effective date of the Nebraska irrigation act of 1895,119 and provided the riparian land has not subsequently lost its riparian status by severence.120 But the court concluded that an appropriator may be liable for injury to a recognized riparian right "if, but only if, the harmful appropriation is unreasonable in respect to the [riparian] proprietor." m The court set forth the following criteria for determining such reasonableness (as well as criteria for determining the appropriateness of an injunction, discussed below):122 An appropriator who, in using water pursuant to a statutory permit, intentionally causes substantial harm to a riparian proprietor, through invasion of the proprietor's interest in the use of the waters, is liable to the proprietor in an action for damages if, but only if, the harmful appropriation is unreasonable in respect to the proprietor. The appro- priation is unreasonable unless its utility outweighs the gravity of the harm. Compare Restatement, Torts, ss. 851, 852, pp. 353, 358. In evaluation of the utility of the appropriation causing intentional harm to a riparian proprietor, the following factors are to be con- sidered: (1) The social value which the law attaches to the use for which the appropriation is made; (2) the priority date of the appropria- tion; and (3) the impracticability of preventing or avoiding the harm. Compare Restatement, Torts, s. 853, p. 361. In evaluation of the gravity of intentional harm to a riparian proprietor through the appropriator's use of the waters, the following factors are important: (1) The extent of harm involved; (2) the social value which the law attaches to the riparian use; (3) the time of initiation of the riparian use; (4) the suitability of the riparian use to the watercourse; and (5) the burden on the riparian proprietor of avoiding the harm. Compare Restatement, Torts, s. 854, p. 369.123 The court said in regard to these general criteria, "Facts are so important that in the absence of legislation a viable system ought to be evolved by the process of inclusion and exclusion, case by case. Here the conflicting claims are claims of private right to uses for purposes of livestock water and of irrigation. We 119 This act is discussed at note 9 et seq. supra. 120141 N.W. (2d) at 742, 743, 745. The court noted that a few of the land patents in dispute "had been initiated by entries filed prior to March 27, 1889. All other patents were initiated after April 4, 1895," the effective date of the 1895 act. 141 N.W. (2d) at 742, modified in other respects, 180 Nebr. 569, 144 N.W. (2d) 209 (1966), in which the court again spoke of the dates that entries were filed. The question of the effect, if any, of any settlement prior to the filing of an entry was not expressly considered, as discussed in chapter 10, note 89. 121141 N.W. (2d) at 745. 122 See the discussion at notes 132-133 infra. 123141 N.W. (2d) at 745-746. |