OCR Text |
Show 741 priate subterranean waters found under his land, but his use thereof must be reasonable, and not injurious to others who have substantial rights in such waters.' " 162 Even more recently, in affirming judgment for damages against a public power district, the supreme court rejected the district's contention that the common law was in force in Nebraska as to subsurface percolating waters and that it had a lawful right to dig on its own land without liability for resulting drainage of subsurface waters from adjacent lands, and reaffirmed the principle that the American rule of reasonable use, in conflict with the common law, had been adopted in Nebraska and was the law in that State.163 Determinations of water rights are made by the Department,164 from which appeal may be taken to the supreme court.165 If not appealed from, these determinations constitute final adjudications and cannot be collaterally attacked.168 This statutory procedure of adjudication of water rights was taken from the procedure established in Wyoming. The supreme court held in 1943 that the legislative grant of jurisdiction to the Department did not include the power to adjudicate vested rights or to make an adjudication with respect to the apportionment of water between users after diversion into common private ditches, that being a function belonging to the courts.167 Distribution of water from streams to the holders of water rights is made, under the direction of the Department, by superintendents of two statutory water divisions and 168 Osterman v. Central Nebraska Public Power & Irr. Dist., 131 Nebr. 356, 365, 268 N. W. 334 (1936), citing Olson v. Wahoo, supra (footnote 161). 168 Luchsinger v. Loup River Public Power Dist., 140 Nebr. 179, 181-183, 299 N. W. 549 (1941). The supreme court stated that subirrigation in the natural condition of land used for farming was a valuable property right attached to the land itself, citing the Osterman case (footnote 162) which in turn cited Olson v. Wahoo (footnote 161). The court went on to state that a rule of law in conflict with the common law of England had been adopted in Nebraska in language quoted from Olson v. Wahoo stating the principles of the American rule. "It is argued, however, that this is dictum in the opinion in which it appears and not binding on defendant in the present controversy. Whatever may be thought of its applicability to the case in which the rule was adopted, it answers for itself as a sound proposition of law essential to the protection of property rights of private individuals and is consistent with the Constitution and with morality and justice. * * * The American rule is not only law in Nebraska, but it applies to property damaged for public use as well as to property taken- for public use. * * *" 164 Nebr. Rev. Stats. 1943, §§ 46-226, 46-230 to 46-232. 185 Nebr. Rev. Stats. 1943, § 46-210. 188Farmers' Irr. Dist. v. Frank, 72 Nebr. 136, 152, 100 N. W. 286 (1904); Enterprise Irr. Dist. v. Tri-State Land Co., 92 Nebr. 121, 135, 149-150, 138 N. W. 171 (1912), writ of error dismissed, Enterprise Irr. Dist. v. Farmers Mutual Canal Co., 243 U. S. 157 (1917); In re Claim Affidavit of Parsons, 148 Nebr. 239, 243,27N. W. (2d) 190 (1947). ™Plunkett v. Parsons, 143 Nebr. 535, 540, 10 N. W. (2d) 469 (1943). |