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" ')- I", J.J CHAPTER 1 RIPARIAN RIGHTS IN NEBRASKA: BACKGROUND AND PRESENT STATUS This report discusses the two kinds of rights to use surface water currently authorized in Nebraska. riparian and appropriative: how they conflict, how they have been legally interrelated, and how they might be integrated to avoid future conflicts. Nebraska is one of several western states recognizing both riparian and appropri- ative rights. Riparian rights, under which rights to use surface water are based exclusively on owning land bordering a stream. were lirst recognized in Nebraska by decisions of the Nebraska Supreme Court. Appropriative rights, which are acquired by obtaining a state permit and using streamflow for a beneficial purpose, were later established by legislation. The existence of two inconsistent legal bases for allocating surface water rights has resulted in conflicts among riparians and appropriators. Early Nebraska Supreme Court decisions re- solving these conflicts limited a riparian only to money damages: The appropriator got the water. These decisions led 10 the widely accepted con- clusion that the conflict among riparians and appropriators had been definitively resolved judicially in favor of the appropriators. Two recent Nebraska Supreme Court decisions, however, suggest that under some circumstances the riparian would get the water, not the appropriator. This reevaluation of the relative rights of riparians and appropriators has led to recom- mendations that riparian rights be integrated into the appropriative system. THEORIES OF SURFACE WATER RIGHTS To understand the significance of riparian rights in Nebraska. a briel review of the riparian and appropriative doctrines and their develop- ment in Nebraska is necessary. Rights to use surface water in the United States are governed by two legal doctrines: Riparian rights and prior appropriation. Although both riparian and appro- priative rights are created or acquired under state law. the characteristics of each right are Quite different. The riparian theory is generally followed in the east. Appropriative water rights are recognized in the west. although some western states (including Nebraska) recognize both riparian and appropriative rights. Riparian Rights Riparian rights developed at common law (Le. through litigation) in pre-industrial England. Under the modern version of the riparian rights doctrine, each owner of land bordering a natural stream or lake ("riparian land") has the right to make a "reasonable" use of the surface water flowing past his land. An upper riparian is liable if his use unreasonably interferes with a down- stream riparian use. Whether the upstream use is unreasonable is determined in court and dependS on the facts and circumstances of each case, including the other riparian uses on the stream. The riparian rights exist even if the water has not been used previously, and a new use can be initiated at any time. The water must be used on riparian land (i.e. part of a tract of land which fronts on the stream) within the watershed of the stream. In those states where there is no appro- priation system. a non-riparian who uses water generally is liable 10 any riparian he injures, but a riparian generally is not Hable for any use which interferes with the previously initiated use of a non-riparian. Riparian law. which developed in the more humid environs of England and the eastern United States, is based on the premise that if rights to use water are restricted to riparians. and if each riparian will use the water reasonably. there will be enough for all. The riparian doctrine attempts to adjust uses so that all reasonable riparian uses can be accomodated. Riparian law does not allocate rights to use water so much as it provides the basis for resolving the infrequent disputes arising among users of generally abundant supplies. 1-1