46-204. Natural streams; priority of appropriations; first in time, first in right; preference from nature of use.

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 purposes, but when the waters of any natural stream are not sufficient for the use of all those desiring the use of the same, those using the water for domestic purposes shall have the 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.

Source

Annotations

1. Rights of riparian owners

2. Vested rights

3. Limitations on appropriation

4. Miscellaneous

1. Rights of riparian owners

Parties who have appropriated water for irrigation purposes, and continued such use for seven years, cannot be enjoined by lower riparian owner whose mill privilege may be injured thereby. He must sue for damages. Cline v. Stock, 71 Neb. 70, 98 N.W. 454 (1904), 102 N.W. 265 (1905).

Riparian owner, damaged by appropriation, may recover actual damages sustained. McCook Irr. & Water Power Co. v. Crews, 70 Neb. 109, 96 N.W. 996 (1903).

Common-law rule, in force except as modified by statute, only gives riparian owner right to water so far as consistent with like right of all other riparian owners. Civil law is not applicable. Crawford Co. v. Hathaway, 67 Neb. 325, 93 N.W. 781 (1903).

Riparian owners are entitled, in absence of grant, license, or prescription, to natural flow of water. Plattsmouth Water Co. v. Smith, 57 Neb. 579, 78 N.W. 275 (1899).

2. Vested rights

An appropriator of water for power purposes under act of 1877 acquired a vested right which was not affected by enactment of this section in 1895, giving preference for agricultural purposes. Kearney Water & Electric Powers Co. v. Alfalfa Irr. Dist., 97 Neb. 779, 151 N.W. 319 (1915), 97 Neb. 139, 149 N.W. 363 (1914).

Completed appropriation of water for power under law of 1877 is vested right, and priority, if unchallenged, is not lost by failure to demand adjudication under law of 1895. Gearhart & Benson v. Frenchman Valley Irr. Dist., 97 Neb. 764, 151 N.W. 323 (1915).

Under unrevoked permit from state board, applicant who thereafter applies public waters to beneficial use, acquires vested right. Rasmussen v. Blust, 85 Neb. 198, 122 N.W. 862 (1909).

Where appropriator of water has acquired a vested right to use of water, he may enjoin upper riparian owner on stream from diverting and using the water for purposes not theretofore exercised. McCook Irr. & Power Water Co. v. Crews, 70 Neb. 109, 96 N.W. 996 (1903).

Riparian's right to flow of stream is a vested right, and part and parcel of the land, which legislation cannot abolish. Crawford Co. v. Hathaway, 67 Neb. 325, 93 N.W. 781 (1903).

3. Limitations on appropriation

An appropriation of water, made prior to 1895, is not limited as to quantity except that it must be for some useful and beneficial purpose and within the limits of the capacity of the diversion works. Enterprise Irr. Dist. v. Willis, 135 Neb. 827, 284 N.W. 326 (1939).

This and other sections limit the location and construction of irrigation canals and ditches, as well as the land irrigated by same, to the basin containing the source of the water used, and require that all unused waters shall be returned to the stream from which diverted. Osterman v. Central Nebraska Public Power & Irr. Dist., 131 Neb. 356, 268 N.W. 334 (1936).

4. Miscellaneous

Under former law, the right to appropriate water for irrigation purposes was limited to waters of natural streams. Rogers v. Petsch, 174 Neb. 313, 117 N.W.2d 771 (1962).

Under former law, Department of Roads and Irrigation was neither a necessary nor a proper party to a proceeding on appeal from an order or decision made by it. Cozad Ditch Co. v. Central Nebraska Public Power & Irr. Dist., 132 Neb. 547, 272 N.W. 560 (1937).

It is the duty of the state to see that the waters of its streams, used for irrigation purposes, will not be wasted and that prior appropriators shall be protected as against subsequent appropriators. State ex rel. Sorensen v. Mitchell Irr. Dist., 129 Neb. 586, 262 N.W. 543 (1935).

Agreement to pay maintenance fees for water rights may be enforced. Farmers & Merchants Irr. Co. v. Brumbaugh, 81 Neb. 641, 116 N.W. 512 (1908).

Overflow waters of streams, which run in well-defined course and again unite with stream at lower point, are part of stream and not surface water. Brinegar v. Copass, 77 Neb. 241, 109 N.W. 173 (1906).

One seeking to acquire easement for ditch over another's land must maintain it continuously without material change of location for full statutory period. Dunn v. Thomas, 69 Neb. 683, 96 N.W. 142 (1903).

Reasonable use of water is largely question of fact, depending upon circumstances, but entire diversion, waste, or needless diminution is clearly unreasonable. Meng v. Coffee, 67 Neb. 500, 93 N.W. 713 (1903); Crawford Co. v. Hathaway, 67 Neb. 325, 93 N.W. 781 (1903).

Domestic purposes, as here used, has reference to use of water for domestic purposes permitted to riparian owner by common law, and does not contemplate diversion of large quantities of water in canals or pipe lines. Crawford Co. v. Hathaway, 67 Neb. 325, 93 N.W. 781 (1903).