OCR Text |
Show WATERS SUBJECT TO APPROPRIATION 229 origin.16 In Nebraska, it is held to exclude strictly artificial conditions such as drainage ditches.17 And in New Mexico, waters flowing in a drainage ditch are not appropriable under the constitution or the statute, nor in the absence of statute.1 18 Multiple Classifications of Watercourses The most extensive classifications of appropriable watercourses are in the statutes of Arizona and Texas. The Arizona classification includes waters of all sources, flowing in streams, canyons, ravines, or other natural channels, or in definite underground channels, whether perennial or intermittent, flood, waste, or surplus water, and waters of lakes, ponds, and springs on the surface. The Texas classification includes waters of the ordinary flow and underflow and tides of every flowing river or natural stream; of all lakes, bays, or arms of the Gulf of Mexico; and the storm, flood, or rainwaters of every river or natural stream, canyon, ravine, depression, or watershed in the State.19 Other authorizations with multiple classifications, emphasizing watercourses and elaborating upon or adding to them, are those of California, Idaho, Montana, Nebraska, North Dakota, and Wyoming.20 Navigable Waters In chapter 4, it is noted that provisions formerly contained in the water administration statutes of North Dakota and South Dakota exempted navigable waters from appropriation. These exemptions were deleted from these statutes in 1939 and 1955, respectively.21 No current water appropriation statute in the West exempts navigable waters from the statute. 16Fourzan v. Curtis, 43 Ariz. 140, 143, 29 Pac. (2d) 722 (1934). "* * * the test of the right of appropriation, both in quantity and quality, depends on their natural condition, and not on what may occur after that condition is artifically changed." "Drainage Dist. No. 1 of Lincoln County v. Suburban In. Dist, 139 Nebr. 460, 468-471, 298 N.W. 131 (1941). "Hagerman In. Co. v. East Grand Plains Drainage Dist., 25 N. Mex. 649, 656-658, 187 Pac. 555 (1920). See dlsoPikesPeak Golf Club, Inc. v. Kuiper, _Colo___455 Pac. (2d) 882 (1969), regarding increased drainage waters resulting trom the reclamation of swampland. 19 Ariz. Rev. Stat. Ann. § 45-101 (1956); Tex. Rev. Civ. Stat. Ann. art 7467 (Supp. 1970). 20 Cal. Water Code § § 1200 and 1201 (West 1956); Idaho Code Ann. § § 42-101,42-103, and 42-107 (1948); Mont. Rev. Codes Ann. § § 89-810 and 89-829 (1964); Nebr. Rev. Stat. § § 46-202, 46-233, 46-240, and 46-259 (1968); N. Dak. Cent. Code Ann. § 61-01-01 (1960); Wyo. Const., art. VIII, § 1. 21N. Dak. Comp. Laws § 8235 (1913), amended, Laws 1939, ch. 255; S. Dak. Code § 61.0101 (1939), repealed, Laws 1955, ch. 430, § 1. |