I concur in the conclusions reached upon the following questions, which are necessarily involved in the determination of this case.
1. The common-law doctrine of riparian rights is the basis of our law upon that subject, and governs, so far as applicable to our conditions, matters not regulated by our irrigation statutes.
2. Those parts of the irrigation act of 1895 which provide for a board of irrigation, and the adoption of the rule of ownership of water by appropriation, are constitutional.
3. A suit in equity may be maintained against persons claiming rights to use or divert water of a stream to prevent infringement, under the color of such right, of the rights of plaintiff acquired under our irrigation act.
*3764. Damages accruing to sucli parties by reason of appropriations under the irrigation act become a subject of inquiry and adjudication in such an equity suit.
5. Lower riparian owners do not acquire a prescriptive light to receive water as against upper owners.
6. I think the scope and character of the riparian rights Of the defendant Hall, under the facts disclosed in the cross-petition, are rightly determined.
I express no opinion on the discussion of the doctrine of appropriation as existing independently of and prior io our statutes. If irrigation enterprises are to be met with demands for damages claimed to accrue from interfering with the ownership of the body of the water in our streams, which ownership, it is claimed, is derived from some other source than the irrigation statutes, it seems to me that it will be a serious obstacle in the way of the growth and development of such enterprises, and such rules ought not to be announced until the occasion has arisen in actual litigation, and after full discussion. The doctrine of the private ownership of the body of the water of running streams is not to be found in the common law, nor in the civil law, but was originated in our mining states, and developed there under the influence of the necessities of our miners, and later of farmers in the arid and semiarid districts. It is in the light of these facts that we must determine how far the common law has been modified by our constitution, and the legislation thereunder, and bow far it is applicable to existing conditions. The question whether the law of riparian ownership applies to “the larger streams of the state” appears to depend upon whether the owner of the land is held to own to the thread of the stream or only to the banks, and the former was determined to be the law of this state in McBride v. Whitaker, 65 Nebr., 137. I am not satisfied with the discussion of the éxtent of lands that may be called riparian, and do not see how it is involved in this case.