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<br />Appropriative Rights <br /> <br />Appropriative rights originated in western state <br />court decisions giving legal sanction to mining <br />camp customs regarding land and water use <br />claims. Modern appropriative rights are not <br />based on land ownership but are governed pri- <br />marily by statute. An appropriation is a state <br />administrative grant which allows the holder to <br />use a specific quantity of surface water for a <br />specified purpose on a speCified tract of land if <br />water is available after the claims of earlier <br />appropriators have been satisfied. Acquiring the <br />right is initiated by application for a state permit, <br />and is completed ("perfected") by using the water <br />for the specified purpose. The place of use is not <br />restricted to riparian land. <br />The appropriative doctrine is based on the <br />assumption that water supplies will be in- <br />adequate for all appropriators to be supplied. <br />When shortages occur those "senior" appropri- <br />ators who acquire appropriations first will be <br />entitled to the available water at the expense of <br />subsequent "junior" appropriators. <br /> <br />DEVELOPMENT OF RIPARIAN <br />AND APPROPRIATIVE RIGHTS <br />IN NEBRASKA <br /> <br />Riparian Rights <br /> <br />Judicial recognition. Prior to comprehensive <br />legislation on water rights the Nebraska <br />Supreme Court adopted the riparian doctrine.1 <br />The court subsequently ruled that riparian rights <br />included the right to use water.2 In 1966 the <br />Nebraska Supreme Court ruled that enactment <br />of an appropriation statute in 1895 prevented <br />landowners subsequently acquiring riparian land <br />from the public domain from acquiring riparian <br />rights.3 Riparian land acquired before the <br />effective date of the 1895 appropriation statute <br />retained its riparian rights, however. <br /> <br />Basis of the riparian right. Persons who own <br />or possess riparian land have, with no further <br />requirement, a riparian right to use water. For <br />land to be considered legally "riparian" the major <br />requirements are that the land (1) must border a <br />natural lake or stream, (2) must have come into <br />private ownership before April 4, 1895, and (3) <br />must have been part of a tract of land having <br />direct access to the stream continuously since <br />April 4, 1895.4 Land not meeting all of these <br />requirements does not have riparian status, even <br />if it is physically contiguous to a stream or lake. <br /> <br />Nature of the riparian right. At common law, <br />every riparian landowner had the right to use <br /> <br />1-2 <br /> <br />water as it flowed past his land. Riparians could <br />use as much water as they needed for domestic <br />purposes, but uses of water for other purposes <br />had to be reasonable in light of the uses of other <br />riparians on the stream. Where a riparian <br />complains that an upstream riparian use is inter- <br />fering with his reasonable use of water, the court <br />will consider the reasonableness of both uses. <br /> <br />Appropriative Rights <br /> <br />Legislative recognition. The Nebraska Leg- <br />islature first recognized the appropriative <br />doctrine in 1877 and in 1889, but did not adopt a <br />comprehensive appropriative system until <br />1895.5 The 1895 act created an administrative <br />system for adjudicating existing rights, acquiring <br />new appropriations, and administering appropri- <br />ations during periods of water shortage. Regard- <br />ing riparian rights, the 1895 act protected <br />existing rights to water "appropriated and <br />acquired" prior to April 4, 1895.6 The constitu- <br />tionality of the act was upheld by the Nebraska <br />Supreme Court in 1903.7 <br /> <br />Nature of appropriative rights. An appropri- <br />ation is an administrative grant to use a speCified <br />quantity of water on a specified tract of land for a <br />speCified purpose. Disputes among appropri- <br />ators are resolved on the basis of priority: First in <br />time is first in right. The priority date is the earlier <br />of the date the appropriator applied to the <br />Nebraska Department of Water Resources <br />(DWR) for his appropriation, or (in the case of <br />appropriations adjudicated by the DWR between <br />1895-1900) the date water use was initiated. If <br />streamflow is insufficient to satisfy a senior <br />appropriator, the DWR will reduce or stop the <br />withdrawals of upstream junior appropriators. <br /> <br />JUDICIAL RESOLUTION OF <br />RI PARIAN-APPROPRIATIVE <br />CONFLICTS <br /> <br />The 1895 appropriation act did not explicitly <br />provide a mechanism for resolving disputes <br />among riparians and appropriators. Riparian- <br />appropriative conflicts have been resolved <br />through litigation. Early Nebraska Supreme <br />Court decisions did not involve domestic uses, <br />and favored appropriators. In two more recent <br />decisions, however, the court ruled that appro- <br />priators could be required to stop their with- <br />drawals if they interfered with domestic riparian <br />uses. These decisions have led to recommend- <br />ations that riparian rights be integrated into the <br />appropriative system to minimize future riparian- <br />appropriative conflicts. <br />