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I' , t)r" \;i.Jd I n Early Riparian.Appropriative Cases Clark v. Cambridge & Arapahoe Iff. & Imp. Co. 8 In the 1895 ClarK decision the plaintiff was a downstream riparian who had erected a grist mill on the Republican River in 1879. Defendant-irrigation company in 1891 constructed an irrigation canal above plaintiffs mill. interfering with the mill operation. The court ruled that the riparian normally would have been entitled to compensation from the appropriator because the appropriator was interfering with the riparian's waler use. However. the court further ruled that the riparian had waited too long to press his claim. The riparian knew of the appropriator's plans to irrigate. but did not contest the appropriator's right 10 do so until after the irrigation canal had been constructed_ The opinion sugests that if the riparian's objections had been made in a more timely fashion, the riparian would have been entitled to money damages, The appropriator would have been able to continue 'Nater use upon paying compensation to the riparian, Crawford Co. v. Hathaway.9 The 1903 Crawford decision involved a contlict between a downstream riparian milt operation and a sub- seQuentfy established upstream appropriation for irrigation and municipal purposes on the White River. The court suggested that riparian- appropriative disputes would be resolved on the basis of priority by comparing the dates the riparian and appropriative rights vested. For the appropriator this would be the priority date assigned to the appropriation, For the riparian this would be the date the riparian land was severed from the public domain, The earlier date would give the prior right. However, if the riparian had the prior right, the court suggested that the riparian would be entitled only to money damages. If the appropriator were the junior water user, the appropriator would still be entitled to use the water upon payment of compensation to the senior riparian. McCook Iff. & Water Power Co. v. Crews. 1 0 The 1905 McCook case involved a conflict between a downstream prior irrigation appropriator and a subsequently initiated up- stream riparian irrigator on the Frenchman River. The subsequently initiated riparian irrigation withdrawals interfered with the previously established irrigation withdrawals of the appro- priator. In its decision the Nebraska Supreme Court noted that riparians were generally en- titled to damages when appropriative with- drawals interfered With the riparian water uses. However, the court ruled that a riparian could not increase the amount of damages that he was entitled to by increasing his water use. That is, while the appropriator might be liable for damages for interfering wllh a riparian domestic water use, the appropriator in that case was not liable lor interfering with a riparian use for irri- gation when the riparian's irrigation Occurred after the appropriator's irrigation, The court further said Ihat where a riparian had not used water in the past and was denied the use of water in the future because of appropriative water uses, the dormant riparian right"may prove 10 be so infinitesimal that the law would not take note of il. The damages may be nominal only."" Finally, the court ruled that appropriators were entitled to enjoin by court order "junior" riparian withdrawals that interfered with their "senior" appropriations. Cline v. Stock. 12 The 1905 Cline decision dealt with the conflict between a riparian mill owner on the Republican River at Concordia, Kansas established in 1873, and Nebraska irri- gators 200 miles upstream with 1894 priority dates. In a brief opinion the Nebraska Supreme Court ruled that the riparian could not enjoin the appropriator's diversions through court order, but could sue the appropriators for money damages. Summary. The early cases established that a riparian was entitled to damages when his ripar- ian waler use was interfered with by an appropri- ator. Crawford ( 1903) suggested that the riparian would be entitled to damages if the riparian right vested prior to the appropriation. McCook (1905) established. however; (1l that a riparian's dam- ages could not be increased by increasing the riparian use after the appropriation was initiated, and (2) that an appropriator could enjoin a sub- sequently initiated riparian use. Thus, McCook substantially modifies the suggestion in Crawford that the date the nparian and appro- priation rights vested determined whether damages are owed. McCook makes the date of Initial riparian water use the governing date lor damages as a practical malter. Recent Cases In the early riparian-appropriative cases the appropriator was a collective irrigation enter- prise. white the riparian was a private non- domestic water user, The two more recent cases dealt with private appropriators and private riparian domestic water uses. In an effort to protect domestic uses, the Nebraska Supreme Court adopted a new test for cases involving riparian domestic uses where riparian-appropri- 1-3