Wasserburger v. Coffee

Decision Date15 April 1966
Docket NumberNo. 36049,36049
Citation141 N.W.2d 738,180 Neb. 149
CourtNebraska Supreme Court
PartiesGeorge WASSERBURGER and Beatrice Wasserburger, Husband and Wife et al., Appellees-Cross-Appellants, v. Bill B. COFFEE and Virginia Coffee, Husband and Wife et al., Appellants-Cross-Appellees, Gertrude Quintard and Merrill Quintard, Wife and Husband, Interveners-Appellees-Cross-Appellants.

Syllabus by the Court

1. The common law fixes the reciprocal rights and duties of riparian proprietors, except as it has been modified by Constitution or statute.

2. A right to the use of waters under the doctrine of prior appropriation is superior to a competitive riparian right in land which was part of the public domain prior to April 4, 1895, the effective date of the irrigation act of 1895.

3. Riparian water rights were not abolished by Article XV, sections 4 to 6, Constitution of Nebraska.

4. At common law riparian land consists of a continuous parcel on a watercourse or lake and in one possession.

5. In respect to competing water claims by an appropriator and by a riparian proprietor, land is considered riparian if by common law standards it was such immediately prior to April 4, 1895, and if it has not since lost its riparian status by severance.

6. An appropriator of water in a watercourse who, in using water pursuant to a statutory permit, intentionally causes substantial harm to a riparian proprietor, through invasion of the proprietor's riparian interest in the use of the waters, is liable to the proprietor in an action for damages if, but only if, the harmful use is unreasonable in respect to the riparian proprietor.

7. An appropriator's use of water is unreasonable with respect to a competing riparian right unless the utility of the use outweighs the gravity of the harm.

8. In evaluation of the utility of the appropriation causing intentional harm to the riparian proprietor, the following factors are to be considered: (1) The social value which the law attaches to the use for which the appropriation is made; (2) the priority date of the appropriation; and (3) the impracticability of preventing or avoiding the harm.

9. In evaluation of the gravity of intentional harm to the riparian proprietor through the appropriator's use of the water, the following factors are important: (1) The extent of the harm involved; (2) the social value which the law attaches to the riparian use; (3) the time of initiation of the riparian use; (4) the suitability of the riparian use to the watercourse; and (5) the burden on the riparian proprietor of avoiding the harm.

10. The appropriateness of injunction against tort depends upon a comparative appraisal of all factors in the case, some of the primary factors being the following: (1) The character of the interest to be protected; (2) the public interest; (3) the relative adequacy to the plaintiff of injunction and of other remedies; and (4) the relative hardship likely to result to defendant if injunction is granted and to plaintiff if it is denied.

Neighbors & Danielson, Scottsbluff, for appellants.

Atkins, Ferguson & Nichols, Scottsbluff, for appellees.

R. O. Canaday, Hastings, Wilbur S. Aten, Holdrege, amicus curiae.


SMITH, Justice.

Riparian owners complained that they no longer could water cattle in creeks running through their lands, because upper irrigators were exhausting the streams by diversions pursuant to appropriation permits from the State of Nebraska. The district court found that the owners were entitled to the use of the streams for watering the number of cattle normally pastured on those parcels which were riparian but not on larger contiguous parcels in the same ownership, and the court accordingly enjoined the appropriators.

The hydra of perplexity in this case emerged from the dual administration of water resources under the doctrines of riparian rights and of prior appropriation. Although each method of administration contains internal controls, the law governing a dispute between riparian proprietor and appropriator is vague at best. The two methods are incompatible, and the disorder multiplies problems.

The issues are broad. Defendant appropriators deny that plaintiff landowners, including plaintiffs in intervention, possess a riparian water right. Going further and hypothesizing not only the right but also a wrongful interference with it, defendants take the position that plaintiffs should be left to an action for damages. Injunction is said to be an inappropriate remedy for the wrong to a riparian proprietor, and especially so where equities weigh against him.

On cross-appeal plaintiffs contend that the injunction stopped short of complete relief. According to them, all parcels contiguous to riparian land in the same ownership are also riparian; and livestock water is a use which defendants must respect under the terms of their permits.

The lands are located in Hat Creek watershed in Sioux County, Nebraska. Hat Creek flows generally north some degrees cast across the county and into the State of South Dakota. A tributary, Sowbelly Creek, crosses a continuous tract of 3,320 acres owned by plaintiffs Gertrude and Merrill Quintard. North of the confluence of the two creeks and within 8 miles of the Nebraska-South Dakota boundary, Hat Creek flows through the following four tracts, each of which is shown on exhibit 1-A to be continuous:

Plaintiff Owners Number of Acres

George and Beatrice Wasserburger 3,440

Ray and Patricia Semroska 2,920

John and Lois Geiser 1,680

John and Helen Engebretsen 1,760

Defendants own more than 41,000 acres of land within the watershed, and they possess statutory permits to appropriate water from Hat Creek and its tributaries for purposes of irrigation and irrigation storage. The points of diversion are located upstream from plaintiff's lands.

The major subjects of discussion are:

A. Statutory abrogation of the riparian water right.

B. The riparian water right in view of constitutional amendments.

C. Restrictions on quantity of riparian land.

D. Comparative reasonableness of uses by riparian proprietor and by appropriator.

E. Appropriateness of injunction.

A. Statutory Abrogation of the Riparian Water Right.

The common law fixes the rights and duties of riparian proprietors, except as it has been modified by Constitution or statute. See, s. 49--101, R.R.S.1943; Meng v. Coffee, 67 Neb. 500, 93 N.W. 713, 108 Am.St.Rep. 697, 60 L.R.A. 910. All agree that the common law has been modified by legislative adoption of the prior appropriation doctrine, but the parties differ on the time of the change. Defendants cite the irrigation act of 1889, which was effective March 27, 1889. Plaintiffs rely on the irrigation act of 1895, which was effective April 4, 1895. See, Laws 1889, c. 68, p. 503; Laws 1895, c. 69, p. 244.

The time of modification delimits the land which can validate the common law use by plaintiffs against the statutory use by defendants. If a severance of land from the public domain occurred earlier than enactment of the statute, a riparian water right in the private land may be superior to an appropriative right; but if legislation preceded severance, the appropriative right outranks the riparian right under the facts of the present case.

Some parcels inthe five tracts of plaintiffs were patented between 1890 and March 27, 1895, and receiver's receipts show that a few of these patents had been initiated by entries filed prior to March 27, 1889. All other patents were initiated after April 4, 1895. The district court selected the 1889 cutoff.

Nothing in the act of 1889 specifically dedicated to the people the use of waters in watercourses, but the law authorized appropriation for application to beneficial use. It announced that: 'As between the appropriators the one first in time is first in right.' It established no permit system, but public notice was made a prerequisite to future appropriative rights. See Laws 1889, c. 68, p. 503. Two sections provided as follows:

'The right of the use of * * * water, flowing in a * * * stream * * * may be acquired by appropriation by any person * * *; Provided, That in all streams not more than fifty feet in width, the rights of the riparian proprietors are not affected by * * * this act.' Art 1, s. 1, p. 503. (This proviso was amended in 1893 to apply to streams not more than 20 feet wide. Laws 1893, c. 40, s. 1, p. 377.)

'All persons * * * owning or claiming any lands situated on the banks or in the vicinity of any stream are entitled to the use of the waters of such stream for the purpose of irrigating the land so held or claimed.' Art. 2, s. 1, p. 506.

The irrigation act of 1895 inaugurated the present system of appropriation. The Legislature then dedicated the use of unappropriated waters of every stream to the people subject to appropriation for beneficial use, and it declared water for purposes of irrigation to be a natural want. It specified that priority in time gave the better right as between those using the water for the same purpose, and it preferred domestic use over other uses in cases of insufficient water. See Laws 1895, c. 69, ss. 42, 43, 65, pp. 260, 268.

Our decisions have fostered both sides of the argument. There is authority that the 1889 act substituted the doctrine of prior appropriation for the common law. See, Crawford Co. v. Hathaway, on rehearing, 67 Neb. 325, 93 N.W. 781, 108 Am.St.Rep. 647, 60 L.R.A. 889; Osterman v. Central Nebraska Public Power & Irr. Dist., 131 Neb. 356, 268 N.W. 334 (by implication). Other cases have approved the 1895 cutoff on the theory that the Legislature then for the first time dedicated the use of natural streams to the people. See, Nine Mile Irr. Dist. v. State, 118 Neb. 522, 225 N.W. 679; Southern Nebraska Power Co. v. Taylor, 109 Neb. 683, 192 N.W. 317.

The history of irrigation legislation in the western...

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10 cases
  • Application A-16642, In re
    • United States
    • Nebraska Supreme Court
    • November 30, 1990
    ...have long recognized that §§ 4, 5, and 6 grant constitutional protection to the doctrine of prior appropriation. Wasserburger v. Coffee, 180 Neb. 149, 141 N.W.2d 738 (1966), modified in other respects 180 Neb. 569, 144 N.W.2d 209. This doctrine was adopted by our Legislature via the irrigat......
  • Franco-American Charolaise, Ltd. v. Oklahoma Water Resources Bd.
    • United States
    • Oklahoma Supreme Court
    • April 24, 1990
    ...it held that the appropriations doctrine had abrogated the common-law riparian right, Hathaway was overruled in Wasserburger v. Coffee, 180 Neb. 149, 141 N.W.2d 738, 743 [1966] ).24 United States v. Gerlach Live Stock Co., 339 U.S. 725, 751, 70 S.Ct. 955, 968, 94 L.Ed. 1231, 1249 [1950].25 ......
  • Spear T Ranch, Inc. v. Knaub
    • United States
    • Nebraska Supreme Court
    • January 21, 2005
    ...Nebraska Public Power and Irrigation District, 131 Neb. 356, 268 N.W. 334 (1936), overruled on other grounds, Wasserburger v. Coffee, 180 Neb. 149, 141 N.W.2d 738 (1966). We have also discussed, but never applied, the Restatement, supra. Prather v. Eisenmann, 200 Neb. 1, 261 N.W.2d 766 (ii)......
  • Applications A-16027, In re
    • United States
    • Nebraska Supreme Court
    • January 29, 1993
    ...doctrine of prior appropriation. Prior appropriation is constitutionally protected by article XV, §§ 4, 5, and 6. Wasserburger v. Coffee, 180 Neb. 149, 141 N.W.2d 738 (1966). Upper Big Blue's contention is based upon the fact that the department, in the order of denial, stated that "[b]ecau......
  • Request a trial to view additional results
1 books & journal articles
3 provisions
  • Neb. Const. art. XV § XV-6 Right to Divert Unappropriated Waters
    • United States
    • Constitution of the State of Nebraska 2022 Edition Article XV
    • January 1, 2022
    ...re Application A-16642, 236 Neb. 671, 463 N.W.2d 591 (1990). Riparian rights were not abolished by this section. Wassenburger v. Coffee, 180 Neb. 149, 141 N.W.2d 738 Water rights become vested as of date of appropriation and junior appropriators may use available water within limits of thei......
  • Neb. Const. art. XV § XV-4 Water a Public Necessity
    • United States
    • Constitution of the State of Nebraska 2022 Edition Article XV
    • January 1, 2022
    ...442A, 461, 462 and 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 Legislative conservation and control of water by reclamation districts is a public purpose. Nebraska Mid-State Reclamation Di......
  • Neb. Const. art. XV § XV-5 Use of Water Dedicated to People
    • United States
    • Constitution of the State of Nebraska 2022 Edition Article XV
    • January 1, 2022
    ...442A, 461, 462 and 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 The right to appropriate water for irrigation purposes is limited to waters of natural streams. Rogers v. Petsch, 174 Neb. 31......

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