Wasserburger v. Coffee
180 Neb. 149, 1966 Neb. LEXIS 506, 141 N.W.2d 738 (1966)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
Nebraska law recognizes both riparian and prior appropriation water rights, with riparian rights for lands patented before April 4, 1895, taking precedence over later appropriative rights, and the reasonableness of a harmful appropriation is determined by balancing its utility against the gravity of harm to a riparian proprietor.
Facts:
- Hat Creek and Sowbelly Creek flow through lands located in the Hat Creek watershed in Sioux County, Nebraska.
- Plaintiff landowners, including Gertrude and Merrill Quintard, George and Beatrice Wasserburger, Ray and Patricia Semroska, John and Lois Geiser, and John and Helen Engebretsen, own continuous tracts of land through which these creeks flow.
- Defendant appropriators own more than 41,000 acres within the watershed and possess statutory permits to appropriate water from Hat Creek and its tributaries for irrigation, with diversion points located upstream from plaintiffs’ lands.
- Since settlement, the plaintiffs' tracts have been consistently used for grazing, primarily for winter pasture from October 15 to May 15.
- Prior to 1959, the creeks generally supplied sufficient livestock water during winter grazing seasons, though some shortages were occasionally met by appropriators releasing water upon request.
- Since 1958, defendants have significantly increased their appropriations, expanding irrigation by approximately 11 cubic feet per second for over 800 additional acres after 1951.
- This increased diversion caused the creeks to flow intermittently or dry up during winter grazing seasons after 1959-1960, preventing plaintiffs from watering their cattle.
- Plaintiffs have no reasonably available alternative water sources; well water is alkaline, and impounding stream water for storage is impracticable and excessively costly.
Procedural Posture:
- Plaintiff riparian landowners (including Gertrude and Merrill Quintard, George and Beatrice Wasserburger, Ray and Patricia Semroska, John and Lois Geiser, and John and Helen Engebretsen) brought an action against defendant appropriators in a Nebraska district court (trial court).
- The district court ruled that the plaintiff landowners were entitled to use the streams for watering cattle on riparian parcels (but not larger contiguous ones) and issued an injunction against the appropriators.
- Defendant appropriators appealed the district court's judgment to the Supreme Court of Nebraska (highest court).
- Plaintiff landowners cross-appealed the district court's judgment to the Supreme Court of Nebraska, arguing for broader relief.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does a prior appropriator's beneficial use of water under state permits that substantially harms a riparian landowner's use of water for livestock constitute an unreasonable invasion warranting injunctive relief, and what is the proper scope of riparian land in such a dispute?
Opinions:
Majority - Smith, J.
Yes, an appropriator's beneficial use of water under state permits can constitute an unreasonable invasion of a riparian landowner's interest in livestock water, warranting injunctive relief, especially when the riparian rights predate the general statutory dedication of water to the public, and the court should define riparian land by common law standards prior to 1895 and not lost by severance. The court first clarified that the 1889 irrigation act did not abolish common law riparian rights in Nebraska, but rather the 1895 act, which dedicated the use of unappropriated waters to the people, abrogated future riparian rights. Therefore, lands severed from the public domain prior to April 4, 1895, may possess a superior riparian right. Constitutional amendments in 1920 preserved existing riparian rights by prohibiting the acquisition of a superior right without just compensation. Regarding the quantity of riparian land, the court rejected arbitrary restrictions to original entries or government subdivisions. Instead, it established that land has riparian status only if (1) it was riparian by common law standards immediately prior to April 4, 1895, and (2) it has not subsequently lost its riparian status by severance (typically part of the smallest tract held in one chain of title from the owner on April 4, 1895, to the present). The court remanded for additional evidence on land titles. To reconcile the incompatible doctrines of riparian rights and prior appropriation, the court adopted a comparative reasonableness test. An appropriator causing substantial intentional harm to a riparian proprietor is liable for damages if the appropriation is unreasonable, meaning its utility does not outweigh the gravity of harm. The court outlined factors for evaluating both the utility of the appropriation (social value, priority date, impracticability of preventing harm) and the gravity of the harm to the riparian proprietor (extent of harm, social value of riparian use, time of initiation, suitability of use, burden of avoiding harm). Applying this test, the court found plaintiffs' need for livestock water to be greater than defendants' need for irrigation, despite defendants' significant investments and appropriation priorities. The riparian right was deemed superior, as livestock watering was an existing use, and plaintiffs lacked reasonable alternative water sources. The court concluded that injunctive relief was appropriate, especially because the defendants were private appropriators, not public service providers, and there was no viable 'physical solution' or middle ground to avoid the significant harm to plaintiffs.
Analysis:
This case is significant for clarifying the complex interaction between riparian rights and prior appropriation in Nebraska, a state recognizing both doctrines. By setting April 4, 1895, as the crucial date for establishing the superiority of pre-existing riparian rights and rejecting arbitrary restrictions on riparian land area, the court provided important guidelines for defining and protecting historical water claims. The establishment of a comparative reasonableness test offers a flexible framework for courts to balance competing beneficial uses, emphasizing actual harm, social value, and the availability of alternatives, which will profoundly influence future water rights litigation, particularly in agricultural contexts.
