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Show 16 STATE WATER POLICIES The Texas water appropriation statute provides that nothing in it is to be construed as a recognition of any riparian right in any land the title to which passed out of the State after July 1, 1895.98 Texas legislation in 1967 added a provision similar to the Oregon, South Dakota, and Kansas legislative limitations on riparian rights discussed above." Without prior legislative direction, the high courts of Washington and Nebraska have restricted the operation of the riparian doctrine. The Washing- ton court has said that water in excess of the amount a riparian owner can beneficially use, either directly or within a reasonable time, is subject to appropriation.100 Washington legislation enacted in 1967 has specified some different requirements in this regard.101 A 1903 Nebraska decision ruled that if the riparian owner did not make actual use of the water before conflicting appropriative rights vested, he had no recourse other than to recover such damages for the impairment of his riparian rights as he could prove.102 However, the Nebraska Supreme Court in a 1966 decision has relaxed, to some extent, the restrictions placed upon the remedies available to riparian owners and has given them, in appropriate cases, the Pac. 505 (1914), 146 Pac. 475 (1915); In re Hood River, 114 Oreg. 112, 173-182, 227 Pac. 1065 (1924); California-Oregon Power Co. v. Beaver Portland Cement Co., 73 Fed. (2d) 555, 562, 564, 567-569 (9th Cir. 1934), affirmed, but without deciding the validity of the Oregon statute, in 295 U.S. 142, 153-165 (1935); State ex rel. Emery v. Knapp, 167 Kans. 546, 555-556, 207 Pac. (2d) 440 (1949); Baumann v. Smrha, 145 Fed. Supp. 617 (D. Kans. 1956), affirmed per curiam, 352 U.S. 863 (1956); Williams v. City of Wichita, 190 Kans. 317, 374 Pac. (2d) 578 (1962), appealed dismissed, 375 U.S. 7(1963). See also Belle Fourche In. Dist. v. Smiley,___S. Dak____, 176 N.W. (2d) 239, 245 (1970), regarding the South Dakota legislation; and Baeth v. Hoisveen, 157 N. W. (2d) 728 (N. Dak. 1968), construing North Dakota legislation. These cases are discussed in chapter 6. 98Tex. Rev. Civ. Stat. Ann. art. 7619 (1954). See also Motl v. Boyd, 116 Tex. 82, 108, 286 S. W. 458 (1926), regarding the limitation of riparian rights to the ordinary streamflow. "Tex. Rev. Civ. Stat. Ann. art. 7542a, § 4 (Supp. 1970). This limitation does not apply to the use of water for domestic or livestock purposes. Oklahoma legislation provides that a riparian owner has a right to use a stream for domestic purposes as defined in the legislation. Okla. Stat. Ann. tit. 60, § 60 (Supp. 1970) and tit. 82, § 1-A (1970). 100In re Sinlahekin Creek, 162 Wash. 635, 640-641, 299 Pac. 649 (1931); State v. American Fruit Growers, 135 Wash. 156, 161, 237 Pac. 498 (1925). 101 See Wash. Rev. Code §§ 90.14.170 and 90.14.020(3) (Supp. 1970) and Laws 1967, ch. 233, § 12, creating Rev. Code § 90.14.120, repealed, Laws 1969, ch. 284, § 23. This legislation is discussed in chapter 6. l02McCook In. & Water Power Co. v. Crews, 70 Nebi. 109, 121-127, 96 N.W. 996 (1903), 102 N.W. 249 (1905). See also Cline v. Stock, 71 Nebr. 70, 80-83, 98 N.W. 454 (1904), 102 N.W. 265 (1905). |