85 



Under the act of Congress of 1866, recognizing rights acquired by 

 appropriations made in accordance with kx-al Liws, customs, or 

 decisions, and making all [)iil)lic'dand thereafter disposed of subject 

 to such rights, rights accpiired by appropriation in Nebraska are held 

 to be superior to riparian rights attaching to lands acquired from the 

 Government after the appropriations were made. 



No further irrigation legislation was enacted until 1889. In that 

 year a law was enacted providing that rights to water from the 

 streams, etc., of the State might be acquired by appropriation, 

 priority giving the better rights as between appropriators. The 

 water nnist be taken for a beneficial use, and when the use ceases 

 the right ceases. Parties who had made diversions prior to the 

 passage of this law were held to have acquired rights to water equal 

 to the capacities of their ditches, but in no case exceeding the quan- 

 tity claimed. This law is held to have abrogated the connnon-law^ 

 rule, and lands acquired from the United States (Jovernment since 

 its passage have no riparian rights. In regard to rights acquired by 

 appropriation and by the ownership of riparian lands prior to the 

 enactment of the law of 1880, the court says : 



The two doctrines stand side by side. Tliey do not necessarily overthrow each 

 other. Init one supplements the other. The riparian owner acquires title to his 

 usufructuary interest in the water when lie appropriates the laud to which it 

 is au incident, and when the right is once vested it can not be divested, except 

 by some established rule of law. The appropriator acquires title by apropria- 

 tiou and application to some beneficial use and of which he can not be deprived, 

 except in some of the modes prescribed by law. The time when either right 

 accrues must determine the superiority of title as between coutlicting claim- 

 ants. (Crawford Company v. Hathaway, 93 N. W., 791.) - 



That is, a right acquired by appropriation prior to 1889 is subject 

 to the rights of riparian lands acquired from the Government prior 

 to the appropriations, and riparian rights are subject to all rights 

 acquired by appropriation made prior to the acquirement of the 

 lands from the Government. Rights obtained by appropriation since 

 1889 are subject to the riparian rights attaching to lands acquired 

 from the Government prior to that year. The nature and limitations of 

 the water rights of riparian proprietors are fully brought out in the 

 case cited. This decision is discussed by Mr. Dunton as follows: 



By the doctrine of Crawford r. Hathaway the rights of a riparian owner, to 

 •Yhich he actpiires title when he secures the land on the banks of a stream, 

 consist in the right to use the waters of the stream for domestic purposes, 

 such as drinking and cooking and watering stock, and also in the right to a 

 reasonable use of such waters for purposes of irrigation. " This right of a 

 riparian owner as such to the use of water for irrigation is limited to riparian 

 lands. The right can not be extended to lands contiguous to the riparian land, 

 nor can water be diverted to nonriparian lands which might be used on ripar- 

 ian lands, but is not. Land to be riparian nuist have the stream flowing over 



