46-202. Natural streams; unappropriated water; dedication to public use; appropriated water; further appropriation.
(1) The water of every natural stream not heretofore appropriated within the State of Nebraska, including the Missouri River, is hereby declared to be the property of the public and is dedicated to the use of the people of the state, subject to appropriation.
(2) The water of every natural stream within the State of Nebraska, including the Missouri River, appropriated for storage in a surface reservoir or for underground water storage, is hereby declared to be subject to further appropriation for recovery and beneficial use.
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Annotations
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).
The right of appropriation for irrigation purposes is limited to the waters of natural streams of the state, and does not extend to waters in artificial drainage ditches. Drainage Dist. No. 1 v. Suburban Irr. Dist., 139 Neb. 460, 298 N.W. 131 (1941).
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 water 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).
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).
Right to use of water of natural stream acquired prior to 1895 was a vested property right which could not be taken away by legislative action. City of Fairbury v. Fairbury Mill & Elevator Co., 123 Neb. 588, 243 N.W. 774 (1932).
Right to appropriate public waters of streams of state for generating electric energy is taxable as franchise. Northern Nebraska Power Co. v. Holt County, 120 Neb. 724, 235 N.W. 92 (1931).
Legislature did not intend by the act, of which this section is part, to interfere with prior acquired rights, but to ascertain extent of prior appropriations, and make record of them, in order to carry out law respecting subsequent appropriations. Black Bros. Flour Mills v. Umphenour, 111 Neb. 218, 196 N.W. 123 (1923).
Riparian owners cannot appropriate water of running streams without consent of state. Kirk v. State Board of Irrigation, 90 Neb. 627, 134 N.W. 167 (1912).
The establishment of an administrative system for the regulation and determination of water rights is a legitimate exercise of the police power of the state. California-Oregon Power Co. v. Beaver Portland Cement Co., 73 F.2d 555 (9th Cir. 1934).