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Show NORTH PLATTE RIVER LITIGATION 731 tween 1931 and 1940 as compared with the mean of the flow for the 37-year period ending in 1940 was as follows: 1931__________ 55 per cent 1932___________116 per cent 1933__________ 89--per cent 1934__________ 30 per cent 1935__________ 54 per cent 1936__________ 81 per cent 1937__________ 87 per cent 1938__________103 per cent 1939__________ 54 per cent 1940__________ 44 per cent Since 1930 only one year equalled the mean of the 1904 to 1930 period. Previous droughts had not exceeded two or three years. The present cycle has persisted for 13 years. The commencement of this dry cycle plus the initiation of the Kendrick project precipitated the present controversy. Nebraska rests her case essentially on evidence of shortage and of misappropri • ation of water by the upper States since 1930 and of threats of more serious shortage and diversions in the future. II The equitable apportionment which Nebraska seeks is based on the principle of priority of appropriation applied interstate. Colorado and Wyoming have the rule of priority of appropriation as distin- guished from the rule of riparian rights. [Citations omitted,] Nebraska on the other hand was originally a riparian doctrine State. [Citation omitted.] But when the more arid sections of the State were settled and the need for irrigation increased, legislation was enacted adopting the appropriation principle. [Citation omitted.] That principle was recognized in the constitution which Nebraska adopted in 1920. See Article XV, §§4, 5, and 6. The adoption of the rule of appropriation did not extinguish riparian rights which had previously vested. [Citations omitted.] But riparian rights may be condemned in favor of appropriators; and violation of riparian rights by appropriators will not be enjoined, only compensa- tion or damages being awarded. [Citations omitted.] In that sense riparian rights are considered inferior to rights of appropriators. More important, the rights asserted by Nebraska in this suit are based wholly on appropriations which have been obtained and recognized under Nebraska law. The appropriation system is dominant in the regions of Nebraska which are involved in the present litigation. Hence, we, like the Special Master, treat the case as one involving appropriation rights not only in Colorado and Wyoming but in Nebraska as well. North Park. There are at present in the North Park area in Colo- rado (Jackson County) 131,800 acres irrigated. The climate is arid. The sole industry is cattle raising, the only crops being native hay and pasturage. The growing season is short. While the diversions are high per acre (about 4% acre feet) the return flows are large, making the average consumptive use8 rate only .74 acre foot per acre. 8 Consumptive u«e represents the difference between water diverted and water which re- turns to the stream after use for Irrigation. |