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Show 434 APPROPRIATION OF WATER large quantity rights for domestic purposes in municipalities were often sought after much of the streamflows were already appropriated. Yet irrigation, although having a high preference rating, is superseded by higher preference domestic and municipal uses. As shown in the above discussion, some constitutional and statutory declarations of preferences in time of water shortage include a proviso inhibiting the taking of earlier rights without compensation, and some do not. In cases in which courts of record passed on the question, however, compensation was required. (2) Subjection of future appropriations to taking without compensation. In most cases, these declarations have not been construed as subjecting rights acquired after their enactment to the hazard of uncompensated loss to preferred rights. In Texas there is an exception. A statute enacted in 1931-the "Wagstaff Act"1009-declared, among other things, that: "The right to take waters necessary for domestic and municipal supply purposes is primary and fundamental, and the right to recover from other uses, waters essential to such purposes shall be paramount and unquestioned in the policy of the State, and in the manner Constitutional and Statutory authority provide."1010 The section then goes on to recognize, in all political subdivisions of the State and constitutional government agencies exercising general legislative powers, the right of eminent domain, to be exercised as permitted by law for water purposes. This authorization to take waters necessary for the preferred uses, then, includes payment of compensation. However, another provision initiated in the Wagstaff Act provides that as between appropriators the first in time is the first in right; provided that all appropriations thereafter made with respect to streams other than an international boundary stream-in other words, the Rio Grande-for any purposes other than domestic or municipal, "shall be granted subject to the right of any city, town or municipality of this State to make further appropriations of said water thereafter without the necessity of condemnation or paying therefor, for domestic and municipal purposes" as defined in the act as "including water for sustaining human life and the life of domestic animals," "any law to the contrary notwithstanding."1011 The validity of this Texas legislation negating compensation, but eliminating from its applicability the Rio Grande, has been questioned on many occasions. In a controversy pertaining to the waters of this particular river, it was brought 1009Tex. Laws 1931, ch. 128. l0I0Tex. Rev. Civ. Stat. Ann. art. 7472b (1954). l0uTex. Rev. Civ. Stat. Ann. arts. 7472, 7472a (1954), and 7471 (Supp. 1970). Regarding this provision and some possible limitations on its exercise, see McCall, J. D., "Rights of Impounded Water," in Proceedings, Water Law Conferences, Univ. of Tex., pp. 251, 257-262(1952,1954). |