Source

• Neb. Const. art. XIV, sec. 4 (1920);
• Adopted 1920, Constitutional Convention, 1919-1920, No. 35;
• Transferred by Constitutional Convention, 1919-1920, art. XV, sec. 4.

Annotations

1. Natural want

2. Appropriation

3. Miscellaneous

1. Natural want

Ground waters, whether they be percolating waters or underground streams, are a natural want in this state. Metropolitan Utilities Dist. v. Merritt Beach Co., 179 Neb. 783, 140 N.W.2d 626 (1966).

This section declares the necessity of water for domestic use and for irrigation purposes to be a natural want. Hickman v. Loup River P. P. Dist., 176 Neb. 416, 126 N.W.2d 404 (1964).

Water for domestic use and for irrigation purposes is a natural want. State v. Birdwood Irrigation District, 154 Neb. 52, 46 N.W.2d 884 (1951).

2. Appropriation

Sections 46-2,107 through 46-2,119, permitting instream flow appropriations, do not offend this provision or Neb. Const. art. XV, section 5 or 6. In re Application A-16642, 236 Neb. 671, 463 N.W.2d 591 (1990).

Department of Water Resources initially determines right to an appropriation of water. Ainsworth Irr. Dist. v. Bejot, 170 Neb. 257, 102 N.W.2d 416 (1960).

Claim made and rejected that appropriation of surface and ground waters without compensation violated this section. Dischner v. Loup River P. P. Dist., 147 Neb. 949, 25 N.W.2d 813 (1947).

Rights of irrigation in Nebraska exist only as created and defined in constitutional provisions and statutes, and right of appropriation for irrigation is limited to natural streams. Drainage Dist. No. 1 of Lincoln v. Suburban Irr. Dist., 139 Neb. 460, 298 N.W. 131 (1941).

Water rights become vested as of date of appropriation and junior appropriators may use available water within the limits of their appropriation as long as the rights of senior appropriators are not injured or damaged. State ex rel. Cary v. Cochran, 138 Neb. 163, 292 N.W. 239 (1940).

By adoption of this and two succeeding sections, Nebraska recognized the principle of prior appropriation of waters. Nebraska v. Wyoming, 325 U.S. 589 (1945).

3. Miscellaneous

The statutory law and judicial decisions of the Nebraska Supreme Court show a clear intention to enforce and maintain a rigid economy in the use of public waters in order to secure the greatest benefit possible from the waters available for irrigation. The state has the right, under both the police powers and the Nebraska Constitution, to regulate the use of natural rivers and streams so that waste is eliminated. In re Water Appropriation Nos. 442A, 461, 462 & 485, 210 Neb. 161, 313 N.W.2d 271 (1981).

Riparian rights were not abolished by this section. Wassenburger v. Coffee, 180 Neb. 149, 141 N.W.2d 738 (1966).

Legislative conservation and control of water by reclamation districts is a public purpose. Nebraska Mid-State Reclamation District v. Hall County, 152 Neb. 410, 41 N.W.2d 397 (1950).

Constitution as well as statutes recognizes and encourages irrigation. Landowner may improve land by artificial application of water in reasonable and careful manner, without liability to adjoining owner except for negligence or willful act proximately causing damage. Spurrier v. Mitchell Irr. Dist., 119 Neb. 401, 229 N.W. 273 (1930).