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Show NEBRASKA 357 In an early case, the Nebraska Supreme Court had held that an appropriator might restrain upstream riparians-who had not diverted water until after the appropriative right had vested-from now diverting an injurious quantity from the stream, leaving the riparians to an action to recover damages if any had been sustained.130 In another early case, on general demurrer, it was held that a lower riparian owner could not enjoin continued use of water by an upstream appropriator who had lawfully acquired an appropriative right, constructed works, and put the water to beneficial use, but must rely upon his action to recover such damages, if any, as he might sustain thereby.131 But in the 1966 Wasserburger case, the court changed its former rule that riparians could only maintain an action to recover damages against an appropriator.132 The court agricultural or recreational purposes, and the fact that defendants may also use it for domestic purposes will not justify any unreasonable diminution of water resulting in harm to plaintiff. "The correlative rights of the parties to the use of the water in West Creek having been determined, we turn to the remaining issue of fact as to whether the construction of the proposed dam will result in an unreasonable shortage of water for plaintiff to his damage." 168 N.W. (2d) at 27-28. The court held that "the plaintiff has not met his required burden of proof." Hence, the trial court's denial of his request for an injunction was affirmed. 168 N.W. (2d) at 28-29. The trial court also had denied the plaintiffs motion for a new trial but the supreme court modified the order of dismissal so as to permit the future litigation of one disputed issue, noting, inter alia, that "Plaintiff is entitled to protection from any interference by the defendants as to the uninterrupted flow of water through [the outlet] pipe which is provided for in the plans of the proposed dam, as well as any silting or other obstruction in the functional operations for the conducting of water through the various outlets of the dam." 168 N.W. (2d) at 29. Among other confusing aspects of this case, the court (after indicating [as stated in the above quotation from its opinion] that the plaintiff downstream domestic user did "not plead nor prove facts entitling him to vested riparian rights * * * which might precede April 4, 1895," and that he "has never applied for nor secured any water rights from the Department of Water Resources") did not clearly indicate the basis or nature of the plaintiff's right. Nor did the court indicate that Article XV, section 6 of the Nebraska constitution, to which it referred, apparently applies particularly to com- peting appropriative rights and includes a proviso that no inferior right shall be acquired by a superior right without just compensation. In this regard, see the discussion at note 39 supra, and see Fischer, R. L, Harnsberger, R. S., and Oeltjen, J. C, "Rights to Nebraska Streamflows: An Historical Overview with Recommendations," 52 Nebr. L. Rev. 313, 329 (1973). i30McCook In. & Water Power Co. v. Crews, 70 Nebr. 109, 115, 96 N.W. 996 (1903), 102 N.W. 249 (1905). 131Cline v. Stock, 71 Nebr. 70, 79, 98 N.W. 454 (1904), 102 N.W. 265 (1905). This and the McCook case, cited in the preceding note, are discussed in more detail in chapter 13 under "Remedies for Infringement-Injunction or Damages or Both-Some State Riparian-Appropriation Situations-Nebraska."These two cases were decided soon after the decision in Crawford Co. v. Hathaway, discussed at note 112 et seq.supra. 132With respect to the two early cases discussed above, the court said, "We think [these] cases have been misread. The appropriative rights [in these cases] seem to have been {Continued) |