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Show 206 WATER RIGHTS SYSTEMS PERTAINING TO WATERCOURSES necessary to the decision.220 The Oregon statute has been in effect now since the first decade of the 20th century. The water law philosophy of some States, therefore, denies to the riparian proprietor a vested right of nonuse of water, and holds that deprivation of any such claimed privilege is not abrogation of a right. That of other States accords him a right of future use of the same validity as his right of present use. Whether the courts have considered the matter stare decisis has necessarily had great weight in determining the constitutional question. The Status in Summary: By States The overall riparian status in the West has been discussed heretofore under "Establishment of the Riparian Doctrine-Status of the Riparian Doctrine in the West," but without necessarily emphasizing the riparian-appropriation relationship. Briefly, after the century of conflict the riparian doctrine is found to be recognized in theory or in practice or both, in 11 States, but with wide ranges in the degree of recognition and in the way it has been applied or curtailed. Such matters are discussed in the following summaries of the status of the interrelationships of the riparian and appropriation doctrines in the respective States. States in Which There Generally Are No Interrelationships Arizona, Colorado, Idaho, Montana, Nevada, New Mexico, Utah, and Wyoming recognize appropriative water rights but generally not riparian water rights.221 Hence, in these States, there generally are no doctrinal interrelation- ships. Moreover, while Hawaii recognizes riparian rights, it does not have an ap- propriation system of surface water rights. Alaska A statute enacted in 1917 declared that owners of mining claims that embraced both banks of a stream were entitled to use all water necessary for working their claims, subject to appropriative rights already vested but superior to those of subsequent date. Later appropriators were entitled to the use of the water during such times as it was not needed by the riparian claimants.222 The United States Court of Appeals, 9th Circuit, stated (probably as dictum) that 220California Oregon Power Co. v. Beaver Portland Cement Co., 295 U. S. 142, 154-165 (1935). 221 See "Establishment of the Riparian Doctrine in the West-Status of the Riparian Doctrine in the West-Nonrecognition," earlier. See also chapter 10. 222 Alaska Laws 1917, ch. 17, Comp. Laws Ann. § 47-3-35 (1949), Stat. §§ 27.10.080 (Supp. 1962) and 38.05.260 (Supp. 1965). A more detailed discussion of the historical development of early mining court decisions and this legislation is included in the State summary for Alaska in the appendix. |