| OCR Text |
Show NEBRASKA 363 Appeal from the order of determination of rights may be taken to the Nebraska Supreme Court within 1 month.163 Judicial construction.-In Crawford Company v. Hathaway, the Nebraska Supreme Court considered a contention that the statutory sections vesting the State administrative agency with authority to determine the priority and amount of private appropriations-as well as allowance of further appropria- tions-were unconstitutional as conferring judicial powers upon a tribunal not authorized by the State constitution to exercise such powers.164 The duties of the agency, it was held, are supervisory and administrative, not judicial, even though they be of a quasi-judicial character. It was the court's considered opinion that these sections were not constitutionally obnoxious on the objections raised by counsel, and that the authority to make the water rights determinations was a valid exercise of the legislative power. Questions as to adequacy of administrative authority to determine rights acquired prior to enactment of the 1895 law, and of the finality of such determinations, inevitably arose. They led the court to consider the whole course of local legislation on the subject and the experiences of other States thereon. In Farmers' Irrigation District v. Frank}65 the court pointed out that the 1895 legislation, in creating the State Board of Irrigation, made it the duty of the Board at its first meeting to make proper arrangements for the determination of water rights priorities, beginning on streams most used for irrigation, and continuing as rapidly as practicable until all claims for appropri- ation then on record should have been adjudicated. By that time, many persons and corporations had acquired vested appropriative rights for irrigation. It was not the intention of the legislature, the court stated, to create confusion and to stir up strife and litigation over water rights theretofore acquired. It was manifest that among the main inducements to passage of the 1895 law were the features requiring adjudication of priorities of appropriation on the streams of the State up to such time, and the creation of a State Board whose records would evidence these priorities in such a public manner that no one might be misled, but by which others desiring to appropriate water could learn the exact status of water titles on each stream. And, said the court, "It would seem that an adjudication made by the state board of irrigation upon a matter properly before it, and within the scope of its powers and duties, is final, unless appealed from the district court."166 certificate showing the priority and details of his adjudicated right (§46-232) was repealed by Nebr. Laws 1955, ch. 183. The statutory limitation on water use was held inapplicable to water rights vested in 1889 before the 1895 appropriation act, which, however, was said to be subject to the general requirement of beneficial use. Enterprise In. Dist. v. Willis, 135 Nebr. 827, 284 N.W. 326, 329-331 (1939). 163 Nebr. Rev. Stat. §46-210 (1974). 164Crawford Co. v. Hathaway, 67 Nebr. 325, 365-371, 93 N.W. 781 (1903). 16SFarmers' In. Dist. v. Frank, 72 Nebr. 136, 145-154, 100 N.W. 286 (1904). 16672 Nebr. at 152. |
