46-201. Water for irrigation; declared natural want.
Water for the purposes of irrigation in the State of Nebraska is hereby declared to be a natural want.
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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).
State, in exercise of police power, may supervise and control the appropriation, diversion, and distribution of public waters of state, and impose that duty on administrative officers. State ex rel. Cary v. Cochran, 138 Neb. 163, 292 N.W. 239 (1940).
Under irrigation act of 1889, a water right for purposes of irrigation need not have been attached to any particular tract of land. Vonburg v. Farmers Irr. Dist., 132 Neb. 12, 270 N.W. 835 (1937).
Under this and other sections, legislative intent is shown to 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 requiring that all unused waters 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).
Prior to existing statutes declaring water for irrigation to be natural want, and granting preference in use of water for agriculture, appropriation for power purposes was as favorably regarded as for irrigation. Kearney Water & E. P. Co. v. Alfalfa Irr. Dist., 97 Neb. 139, 149 N.W. 363 (1914).
In view of preference given by statute to use of water for agricultural purposes, irrigation companies will not be enjoined from diverting water from lower riparian mill owner, where petition fails to allege that appropriation was unlawful. Cline v. Stock, 71 Neb. 70, 98 N.W. 454 (1904), 102 N.W. 265 (1905).
Although use of water for irrigation is declared a natural want, right to so use it must be exercised reasonably under the circumstances of each case. Meng v. Coffee, 67 Neb. 500, 93 N.W. 713 (1903).
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