OCR Text |
Show 740 appeal lying to the supreme court from the Department's decision.157 The riparian doctrine is a part of the water law of Nebraska, but its practical importance in relation to that of the appropriation doctrine has been substantially reduced as the result of decisions of the supreme court. The existence of the riparian doctrine, as modified by the irri- gation statutes, was recognized in several early decisions.158 Two de- cisions rendered in 1903, on the same day, thoroughly considered the law of riparian rights and held it applicable to every part of the State except as altered or supplemented by legislation.159 Two other de- cisions, rendered on rehearing in 1905 on the same day, had the effect of putting the riparian owner who does not make actual use of the water before the time of vesting of appropriative rights in a position where he has no recourse other than to recover such damages for the impair- ment of his riparian rights as he can actually prove, thus eliminating much of the common-law advantage of location of the riparian land with respect to appropriative rights on the same stream.160 The Nebraska Supreme Court in 1933 approved what it termed the American rule of reasonable and beneficial use of percolating ground waters upon the overlying land, with a reasonable proportion to each owner of overlying land if the supply is insufficient for all.161 Such approval was given in a decision in which is was not necessary, in sustaining the trial court's judgment, to adopt the rule in question. However, the supreme court stated subsequently, referring to that case: "We are committed to the rule: 'The owner of land is entitled to appro- 1HNebr. Rev. Stats. 1943, § 46-229, amended Sess. Laws 1947, ch. 172. Prior to the 1947 amendment, the section had provided that an appeal might be taken to the district court of the county in which the point of diversion was situated. Based upon that statutory authorization, the supreme court held in 1930 that the taking of appeal to the district court instead of directly to the supreme court was proper: State v. Oliver Bros., 119 Nebr. 302, 303, 228 N. W. 864 (1930). The provision is not unconstitutional: Kersenbrock v. Boyes, 95 Nebr. 407, 409^11, 145 N. W. 837 (1914); Dawson County Irr. Co. v. Mc- Mullen, 120 Nebr. 245, 247, 250, 231 N. W. 840 (1930). 188 Eidemiller Ice Co. v. Guthrie, 42 Nebr. 238, 253, 60 N. W. 717 (1894); Clark v. Cambridge & Arapahoe Irr. & Improvement Co., 45 Nebr. 798, 806, 64 N. W. 239 (1895); Slattery v. Harley, 58 Nebr. 575, 577, 79 N. W. 151 (1899). 109 Crawford Co. v. Hathaway, 67 Nebr. 325, 339, 342, 93 N. W. 781 (1903); Mengv. Coffee, 67 Nebr. 500, 511-512, 93 N. W. 713 (1903). lwMcCook Irr. & Water Power Co. v. Crews, 70 Nebr. 109, 121-127, 96 N. W. 996 (1903), 102 N. W. 249 (1905); Cline v. Stock, 71 Nebr. 70, 80-83, 98 N. W. 454 (1904), 102 N. W. 265 (1905). For later decisions in which riparian rights were considered, see: Southern Nebraska Power Co. v. Taylor, 109 Nebr. 683, 686-687, 192 N. W. 317 (1923); Slattery v. Bout, 121 Nebr. 418, 420, 237 N. W. 301 (1931) ; Fairbury v. Fairbury Mill & Elevator Co. 123 Nebr. 588, 592, 243 N. W. 774 (1932); Osterman v. Central Nebraska Public Power & Irr. Dist., 131 Nebr. 356, 362-366, 268 N. W. 334 (1936); McGinley v. Platte Valley Public Power & Irr. Dist., 132 Nebr. 292, 296-298, 271 N. W. 864 (1937). 161 Olson v. Wahoo, 124 Nebr. 802, 811, 248 N. W. 304 (1933). |