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Show METHODS OF APPROPRIATING WATER OF WATERCOURSES 433 primary and secondary water rights is reflected in several opinions of the Utah Supreme Court respecting early water rights.1007 (4) The Kansas declaration of principles governing appropriations of water was first enacted in 1945. It was extensively revised in 1957.1008 The 1945 Kansas version declared that where appropriations of water for different purposes conflict they must take precedence in a stated order (repeated in 1957 and given verbatim below); and that as between appropria- tors the first in time is the first in right. The 1957 legislature undertook to reconcile these apparently unreconcilable declarations by enacting the following: (b) Where uses of water for different purposes conflict such uses shall conform to the following order of preference: Domestic, municipal, irrigation, industrial, recreational and water power uses. However, the date of priority of an appropriation right, and not the purpose of use, determines the right to divert and use water at any time when the supply is not sufficient to satisfy all water rights that attach to it. The holder of a water right for an inferior beneficial use of water shall not be deprived of his use of the water either temporarily or permanently as long as he is making proper use of it under the terms and conditions of his water right and the laws of this state, other than through condemnation. (c) As between persons with appropriation rights, the first in time is the first in right.* * * The Kansas legislature did not in terms authorize the condemnation of early priority rights for inferior uses of water for the purpose of putting the water to superior use. However, the above language in section 82a-707(b) is probably to be construed as an implied authorization to this effect. If not, the purpose of declaring an order of preference and then stating explicitly that in time of water shortage it is the date of priority, not the purpose of use, that controls the exercise of the appropriative right, is not evident. Taking for a superior use a right to water already appropriated for an inferior use.-(l) The matter of compensation. The constitutional and statutory provisions of Colorado, Idaho, Nebraska, Oregon, and Kansas with respect to the taking of a senior right for an inferior use of water, in order that a junior right may be exercised with the use of water of a higher preference, are discussed immediately above. The importance of this question lay in the fact that early appropriations of water were usually made for irrigation and, in many areas, for mining, whereas 1007 See Manning v. Fife, 17 Utah 232, 236-237, 54 Pac. Ill (1898); Salt Lake City v. Salt Lake City Water & Electrical Power Co., 24 Utah 249, 266, 67 Pac. 672 (1902), 25 Utah 456, 71 Pac. 1069 (1903); Bishop v. Duck Creek In. Co., 121 Utah 290, 295-296, 241 Pac. (2d) 162 (1952). 1008Kans. Laws 1945, ch. 390, § 7, Stat. Ann. § 82a-707 (1969). 450-486 O - 72 - 30 |
