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Show 214 WATER RIGHTS SYSTEMS PERTAINING TO WATERCOURSES where the use of water tor different purposes conflicts, such uses shall conform to a specified order of priority. Domestic use, as defined, has first priority. As between appropriations for the same type of use, priority in time shall give the better right. No permit shall be required for domestic and livestock uses.259 Section 61-01-01 of the North Dakota statutes, as amended by the 1955 legislation referred to above, declares, among other things, that waters flowing in surface or underground watercourses and percolating ground waters belong to the public and are subject to appropriation for beneficial use. In a 1968 case, the North Dakota Supreme Court appears to have concluded that inasmuch as the right of a riparian landowner to use an underground stream for irrigation purposes had not been exercised before the 1955 legislation, the unused right could be validly abrogated without compensation by the legislation, at least as against appropriative rights acquired thereafter, and that the riparian owner could validly be required by the legislation to apply for and be governed by an appropriative-right permit.260 However, the court qualified this as follows: In upholding the constitutionality of Section 61-01-01, N.D.C.C, we do not approve the procedure followed by the State Water Commission in the instant case, which resulted in granting to one of two landowners, who owned adjacent land and who made application at approximately the same time for beneficial use of water, the use of so much water that the other was in effect denied use of any water. The failure on the part of the State Water Commission to determine the actual amount of water available before granting the first neighbor's application resulted in a very disproportionate granting of water rights. Such a procedure, if followed in the future, might repealing it, but by amending the section so as to delete the entire original wording and to substitute therefor entirely different provisions relating to priority of water rights and preferences in the use of conflicting purposes. 159 Regardless of the proposed use, however, all water users shall secure a permit before constructing an impoundment capable of retaining more than HV2 acre feet of water. This proviso was added by Laws 1965, ch. 447. i60Baeth v. Hoisveen, 157 N. W. (2d) 728 (N. Dak. 1968). The court decided that unused riparian rights to use water for irrigation did not constitute "vested rights." In doing so, it construed the above-mentioned statutory declarations regarding riparian rights and the declaration regarding waters being owned by the public and subject to appropriation for beneficial use, and it indicated that these should be construed in association with the statement in N. Dak. Cent. Code Ann. § 61-01-02 that "Beneficial use shall be the basis, the measure, and the limit of the right to use water." The court added at 157 N. W. (2d) 733 that: "Notwithstanding what this court said in Bigelow v. Draper, 6 N. D. 152, 69 N. W. 570 [1896] and in subsequent supporting decisions which may be construed to the contrary to what is said in the instant case, we hold that there is no deprivation of a constitutional right or rights, and that the action taken by the legislature in enacting Section 61-01-01, N.D.C.C., is within the police power of the State, as a reasonable regulation for the public good." |