Publications

Stone, Legal Background on Recreational Use of Montana Waters, 32 Mont. L. Rev. 1 (1971).

Stone, Montana Water Rights-A New Opportunity, 34 Mont. L. Rev. 57 (1973). Stone, The Long Count on Dempsey: No Final Decision in Water Right Adjudication, 31 Mont. L. Rev. 1 (1969).

Note, Water—a Problem in Montana, 32 Mont. L. Rev. 81 (1971).

Note, Modern Western Legislation as a Pattern for Changes in the Montana Law of Water Rights, 28 Mont. L. Rev. 95 (1966).

Stone, Problems Arising out of Montana's Law of Water Rights, 27 Mont. L. Rev. 1 (1965).

Stone, Improving Montana Water Law, 20 Mont. L. Rev. 60 (1958).

Stone, Are There any Adjudicated Streams in Montana? 19 Mont. L. Rev. 19 (1957).

Note, Doctrine of Relation Back in Montana Water Law, 12 Mont. L. Rev. 87-97 (1951).

Patten, Water Rights in Montana, 23 Rocky Mt. L. Rev. 162-71 (1950).

Heman, Water Rights under the Law of Montana, 10 Mont. L. Rev. 13–34 (1949).

Chapter 27. NEBRASKA

CONTENTS

1. Development of Nebraska Water Law..

2. State Organizational Structure for Water Administration and Control..

2.2

2.1 Administration of Water Rights...

Resolution of Water Use Conflicts..

3. Surface Waters..

Method of Acquiring Rights.

2.3 Other Agencies Having Water Resource Responsibilities.

3.1

3.2 Nature and Limit of Rights

3.3 Changes, Sales, and Transfers..

3.4 Loss of Rights-

Page

461

464

464

465

465

466

466

466

467

467

3.5 Storage Waters, Artificial Lakes, and Ponds.

468

3.6

Springs--

468

3.7 Diffused Surface Waters_

468

4. Ground Water....

469

Publications Available..

470

DISCUSSION

1. DEVELOPMENT OF NEBRASKA WATER LAW

Nebraska has accomplished the transition from a system of riparian water rights to an appropriation regime with relative ease. There has been a great deal of water litigation in the State, although the details of the irreconcilable conflict between the two systems were not finally resolved until the State Supreme Court decision in 1966 in Wasserburger v. Coffee. Thus, although one could start with the date, it is important to review briefly the role of riparianism in early Nebraska

law.2

3

Early decisions in the 1890's recognized the riparian system in Nebraska, and in 1903, the State refused to make a complete substitution of the appropriation system for the law of riparian rights because of the diversity of conditions which existed in the State. Actually, the riparian theory was wholly unsuited to the western part of the State, which is arid and largely dependent upon irrigation to maintain its agricultural economy. Despite this reluctance to recognize appropriation as the exclusive system, the right to appropriate water by diverting and applying it to a beneficial use was impliedly recognized as early as 1877. The first important statute, however, was the Raynor Irrigation Law of 1889 which recognized appropri

1180 Neb. 149, 141 N.W. 2d 738 (1966), modified in part in 180 Neb. 569, 144 N.W. 2d 209 (1966).

2 In recounting this history, credit must be given to James A. Doyle, dean emeritus of the Creighton University School of Law, and to Clayton K. Yeutter, a lawyer and an economist, for excellent articles. See J. Doyle, Water Rights in Nebraska, 20 Neb. L. Rev. 1 (1941) and 24 Neb. L. Rev. 385 (1950); and C. Yeutter, Legal-Economic Critique of Nebraska Watercourse Law, 44 Neb. L. Rev. 11 (1965). Although these comments were published before the Wasserburger decision, they undoubtedly exerted considerable influence on the developmnt of the State's water law.

3 Meng. v. Coffee, 67 Neb. 500, 93 N.W. 713 (1903).

4 Neb. laws, 1877, at 168.

ation and provided that "in all streams not more than 50 feet in width. the rights of the riparian proprietors are not affected." This might have been construed to abrogate all riparian rights except on very small streams.

In 1895, a more comprehensive irrigation law, patterned after a Wyoming statute, was enacted. Under it, the water of every natural stream not previously appropriated was declared to be the property of the public and subject to appropriation for a beneficial use. As between users for the same purpose, priority in time of appropriation was recognized as conferring a prior right, but a preference was accorded to domestic uses which were declared to be of the highest value. The act also established administrative machinery for administering the waters of the State and for acting on applications to appropriate water (State board of irrigation). The 1895 act has remained the cornerstone of the present Nebraska irrigation code."

The effect of the two appropriation statutes on used and unused riparian rights was never very clear in the Nebraska cases. The problem received definitive treatment in the Wasserburger case where the plaintiffs, lower riparian owners on creeks running through their lands, claimed stockwatering rights as against upper appropriators who were diverting the water under State permits. Defendants not only denied the existence of the riparian rights, but suggested that if they did indeed exist, injunctive relief was inappropriate because the equities of the case demanded that their use for irrigation be preferred over stockwatering. That the case was a matter of considerable significance to the parties is evidenced by the fact that over 50,000 acres of land were involved.

The dates of the early statutes became important since the plaintiffs claimed land ownership under some patents which were initiated by entries prior to March 27, 1889. Other claims were initiated after April 4, 1895. Recognizing that riparian rights existed as to patents prior to these statutes and that the appropriation system had been substituted for the riparian, the court pinpointed the issue in this case to be whether the cutoff date for riparian rights was the 1889 act or the 1895 code. Admitting that the provisions of the 1889 act were at cross-purposes and so vague that interpretation was difficult, the court concluded that: (1) The references to riparian rights were declaratory of the common law, i.e., that riparian rights existed in connection with patents issued after that date; and (2) the act failed to substitute the appropriation system for the riparian system. In the court's words, the 1889 act was intended only to "chip away at the common law right." The 1895 date, therefore, was held to be the cutoff date, so that to the extent that the plaintiffs claimed under patents to public domain prior to 1895, they might assert riparian rights. The court also held that a constitutional provision adopted

Neb. Comp. Stat. (1899), ch. 93a, art. I. sec. 1.

Neb. Comp. Stat. (1895), sees. 5440-5576.

See particularly 3-A Neb. Rev. Stat., 1943, secs. 46-201 to 46-282 and supplements (reissue 1968). The current Nebraska statutes will hereafter be referred to simply by section numbers.

8 Crawford Co. v. Hathaway, 67 Neb. 325, 93 N.W. 781 (1903); Osterman v. Central Neb. Public Power & Irr. Dist., 131 Neb. 356, 268 N.W. 334 (1936). Cases reaffirmed were Nine Mile Irr. Dist. v. State, 118 Neb. 522. 225 N.W. 679 (1929); Southern Neb. Power Co. v. Taylor, 109 Neb. 683, 192 N.W. 317 (1923).

in 1920, which affirmed the existence of the appropriation system, did not evidence an intent to impair vested riparian rights acquired prior to 1895.

The court then carefully pointed out that land, even though patented prior to 1895, might not necessarily be riparian for present purposes. After examining the various tests which courts in this country have applied to determine what constitutes riparian land, it concluded that in addition to location adjacent to a stream immediately prior to 1895, the land must not since that date have lost its riparian status by a severance. Severance was defined to mean that no part of the land had since become separated from the rest by intervening land in the possession of another. Thus, the riparian status would be confined to the smallest tract in the chain of title from 1895 to the present owner.10 If a severance existed in the history of the title so that part of the tract became nonriparian land, the severed land could not regain riparian status if reacquired by the present riparian owner. On this point, the court remanded the case for further evidence.

In the last part of the opinion, the court tackled the exceedingly difficult task of reconciling the conflicting interests of the riparians and the appropriators. The problem was sharply pointed up by the fact that the defendants claimed under a number of appropriations, some bearing adjudicated priority dates as early as 1880 and as late as 1961. The court recognized on the one hand that the riparian privilege extends only to reasonable use, and on the other hand that while the appropriators acted intentionally, yet they had expended considerable amounts over the years in perfecting their diversions. In balancing the interests of the parties, it was suggested that the following factors are relevant: (1) The social value which the law attaches to both the riparian and the appropriation uses; (2) the relative dates and priorities of both types of claimants; (3) the practicability of avoiding the harm by both claimants; and (4) the extent of the harm to the riparian owner as well as the suitability of his use to the particular watercourse. It was also emphasized that the claims of all parties were for private, as distinguished from public, uses. Earlier cases 11 denying injunctive relief where one appropriator's use offered a public service were therefore distinguished as irrelevant. On the merits of the case, the court held that the riparians were entitled to an injunction, although the details were to be worked out subsequently by the trial court in accordance with the considerations emphasized in the opinion.

After the Wasserburger decision, it seemed clear that riparian rights in Nebraska could be claimed only in connection with land patented prior to 1895. But in 1969, the State Supreme Court handed down a somewhat puzzling decision in Brummund v. Vogel.12 This was a suit brought by a lower riparian owner against an upstream appropriator to enjoin the latter from constructing a dam on the

Neb. Const., art. XV, secs. 4–7.

10 The Nebraska cases are discussed in W. Farnham, The Permissible Extent of Riparian Land, 7 Land & Water L. Rev. 31 (1972).

11 See Cline v. Stock, 71 Neb. 79, 102 N.W. 265 (1905); McCook Irr & W.P. Co. v. Crews, 70 Neb. 115, 102 N.W. 249 (1905); Clark v. Cambridge & Arapahoe Irr. & Imp. Co., 45 Neb. 798, 64 N.W. 239 (1895).

12 184 Neb. 415, 168 N.W. 2d 24 (1969).

watercourse which would diminish the amount of water available to the riparian owner for stockwatering purposes. Evidence showed that while defendant's dam would be used in part for domestic purposes, it was primarily intended for agricultural (soil erosion control) and recreational (fishing) purposes. The court admitted that the riparian owner claimed no riparian rights based upon pre-1895 grants and that he had secured no permit from the department of water resources. Despite these admissions, the court held that the plaintiff had riparian rights for a reasonable amount of water for domestic purposes (stockwatering), which were prior to defendant's permit for agricultural and recreational purposes. The court relied upon a constitutional provision which gave domestic uses a preference over other water uses.13 The decision seems to revive the doctrine of riparian rights in Nebraska in direct contradiction to the holding of the court in the Wasserburger case, which confined riparian rights to pre-1895 grants.

2. STATE ORGANIZATIONAL STRUCTURE FOR WATER ADMINISTRATION AND CONTROL

2.1 Administration of Water Rights

The department of water resources was established as successor to the earlier board of highways and irrigation. In addition to supervisory powers over all waters of the State, the department acts upon all applications to appropriate or store water.14

14

If unappropriated water exists, the department of water resources may approve the application if such application and appropriation when perfected is not otherwise detrimental to the public welfare.15 When the water right is perfected, it relates back to the date of the filing of the application, which is its priority date.16 If the application is rejected or if less water is awarded than is requested in the application, the aggrieved party is entitled to a hearing before the department and to direct review by the supreme court." The statutes also provide for an adjudication procedure in which the department may initiate an administrative proceeding to forfeit water rights for nonuse for a period of 3 years.18 All adjudications after a hearing are final unless appealed.

13 Neb. Const., art. XV, secs. 4-6. After declaring that the use of water for domestic and irrigation purposes constitute a natural want, the amendment provided that the "use of the water of every natural stream is hereby dedicated to the people of the State for beneficial purposes ***" Section 6 then provides:

"The right to divert unappropriated waters of every natural stream for beneficial use shall never be denied except when such denial is demanded by the public interest. Priority of appropriation shall give the better right as between those using the water for the same purpose, but when the waters of any natural stream are not sufficient for the use of all those desiring to use the same, those using the water for domestic purposes shall have preference over those claiming it for any other purpose, and those using the water for agricultural purposes shall have the preference over those using the same for manufacturing purposes. Provided, no inferior right to the use of the waters of this State shall be acquired by a superior right without just compensation therefor to the inferior user."

It would seem that there is nothing in this section that affirms the existence of riparian rights in all natural streams of the State. The section is simply declaratory of the 1895 legislation. 14 Secs. 46-208 to 46-214. See Yeutter, note 2, p. 1, at 19-25.

15 Sec. 46-235.

16 Sec. 46-205.

17 Sec. 46--238.

18 Secs. 46-226 to 46-232.