Riparian Rights – Upstream Use of Water

“It is generally held that a riparian owner may restore to its former channel a stream which has formed a new channel upon his land, providing he does so within a reasonable time after the new channel is formed, and before the interests of lower riparian proprietors along the course of the old channel would be injuriously affected by such action on his part…. The time within which a stream may be restored to its original channel does not depend upon a statute of limitations but upon whether the public have acted with justification on the belief that the change was to be permanent, and have made changes in their property in reliance on that belief.” Whipple v. Nelson, 143 Neb. 286, 9 N.W.2d 288 (1943); Johnk v. Union P. R. Co., 99 Neb. 763, 157 N.W. 918 (1916).

Where upper riparian landowner and predecessor in title of lower riparian landowner, by agreement, changed channel of stream under circumstances that showed an intent on their part as adjoining landowners that new channel should thereafter be course of the stream, and successor in title likewise accepted such condition, and the old channel gradually filled up with silt, and was, in places, filled in and leveled off by upper riparian owner, and both parties farmed over old creek bed for a number of years, upper riparian owner was “estopped” from restoring water into its former channel. Whipple v. Nelson, 143 Neb. 286, 9 N.W.2d 288 (1943).

In Wasserburger v. Coffee, 180 Neb. 569, 144 N.W.2d 209 (1966), the Nebraska Supreme Court held that the plaintiffs, who were lower riparian owners, were entitled to sufficient flow to provide watering capacity for the number of cattle that could normally be pastured on riparian lands, and granted an injunction to prohibit diverting water for irrigation purposes. The court applied factors taken from the Restatement of Torts including (1) the character of the interest protected, (2) the public interest, (3) the relative adequacy to the plaintiff of an injunction or other remedies, and (4) the relative hardship likely to result to the defendant and the plaintiff. The court has been severely criticized for using these factors favoring domestic purposes, although it is likely from the holding in Brummond v. Vogel, 184 Neb. 415, 168 N.W.2d 24 (1969), that the court’s intention was to apply these criteria solely to this factual situation.

In Brummond v. Vogel, 184 Neb. 415, 168 N.W.2d 24 (1969), the plaintiff, a downstream stock waterer with no apparent riparian rights, sued to halt construction of a dam by defendants holding valid water storage permits. The court held that the plaintiff’s right to use water for domestic purposes was superior to the defendants state permit to impound water. However, this right was not strong enough to justify an injunction. The court held that the plaintiff’s right to use the water for domestic purposes is superior to the defendant’s right to construct a dam.

A dam may be constructed and maintained across a stream by a riparian proprietor provided that it does not appreciably diminish the amount of water which should naturally flow onto or by the land of lower proprietors, or materially affect the continuity of the flow. 56 Am. Jur., Waters, § 27, p. 517 The plaintiff bears the burden of proof to establish that the upper proprietor will cause damage by an unreasonable use of the waters of the stream. 93 C. J. S., Waters, § 37g, p. 678, § 36(9), p. 666.

The owner of a dam may abandon his or her prescriptive right to overflow the land and may also return the river to its natural state by removing or destroying the dam. Kiwanis Club Found. v. Yost, 179 Neb. 598, 139 N.W.2d 359 (1966).

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