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Show NEBRASKA 467 have the duty "to enforce existing priorities, not to determine, change or amend them." 88 Nebraska's water preference are provided for in the constitution 39 as well as the statutes.40 In times of scarcity, domestic uses have first priority, and agricultural uses have priority over uses for manufac- turing and power purposes.41 Apparently these preferences do not apply to pre-1895 appropriations or riparian rights. On domestic uses, reference should be made to the case of Brummund v. Vogel, discussed in section 1, supra. Where junior appropriators assert a temporary priority by water use preference over senior appropriators, compensation must be paid.42 One writer has questioned the desir- ability of giving constitutional protection to water use preference.43 3.3 Changes, Sales, and Transfers Since irrigation permits must describe the land to be irrigated and the amount of land,44 it appears that the only way to acquire a depend- able water right where the water is already fully or over appropri- ated is to purchase land which carries an early water priority.45 The statute deals solely with irrigation permits, and there is nothing in the water code which would authorize transfers of irrigation permits to other types of water uses. It has been suggested that these restric- tions should be abolished because water-using industries are discour- aged from coming into the State. At an earlier date, Nebraska appeared to adopt the rule that inter- basin or trans-watershed diversions could not be made,46 and although more recent cases have permitted such diversions,47 it is still not en- tirely clear how and under what circumstances these diversions may be made. 3.4 Loss of Rights The water code provides for a procedure initiated by the depart- ment of water resources for the purpose of cancelling water rights for nonuse for a period of 3 years.48 A cancellation after notice and hearing may be reviewed directly by the State Supreme Court.49 Apparently, the department is unable because of its workload to maintain an active program for canceling dormant water rights. A more simplified cancellation procedure has been recommended,50 al- though it should be noted that the statutory procedure is not exclu- sive because the courts can declare forfeiture for nonuse in water litigation between private parties. 38 The case is discussed in Yeutter, note 2, at 39-43. 88 See note 13. « Sec. 46-204. « Sec. 70-668. *2 Sec. 70-669. 48 See discussion of eminent domain and preferences in Yeutter, note 2, p. 1, at 44-49. «* Sec. 46-233. « See Doyle, note 2, 29 Neb. L. Rev. at 403-05. 46 See the excellent discussion in J. Oeltjen, R. Harnsberger and R. Fischer, Interbasin Transfers: Nebraska Law and Legend, 51 Neb. L. Rev. 87 (1971). «Ainsworth Irr. Diet. v. Bejot, 170 Neb. 257, 102 N.W. 2d 416 (1960) ; Metropolitan Utilities Dist. v. Merritt Beach Co., 179 Neb. 783,140 N.W. 2d 626 (1966). « Sec. 46-229.02 « Sec. 46-22,9.05. 50 See Yeutter, note 2 at 37. 499-242-73------31 |