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Show ELEMENTS OF THE APPROPRIATIVE RIGHT 535 (d) Domestic. The New Mexico water appropriation statute authorizes travelers to take water for their own use, and for animals under their charge, from water currents flowing from natural sources.478 An early Kansas statute, still extant, provides that any person may take water from a natural stream "for filling barrels or other vessels for his domestic uses."479 The Utah Supreme Court held that while flowing naturally in a stream channel, water is common property to which all have equal rights, subject at all times not only to the same rights in others, but also to the special rights to divert and use water of the stream recognized by the law of appropriation. Thus, subject to vested rights of appropriation by others, anyone may drink or dip water from the stream or water his animals therein. This is sharply distinguished from the special right of appropriation, which is a limitation on these rights of public use, and which requires a diversion from the stream or other interference with the natural free flow.480 In Kansas, use of water for domestic purposes instituted after the 1945 water appropriation law went into effect, to the extent that it is beneficial, constitutes an appropriation right without the necessity of first obtaining approval of the administrator. However, any person using water for domestic purposes after that date, or intending to make such use after the 1957 amendment, may apply for a permit pursuant to the formal statutory procedure.481 (e) Municipal. The California statute provides that "The application for a permit by a municipality for the use of water for the municipality or the inhabitants thereof for domestic purposes shall be considered first in right, irrespective of whether it is first in time."482 In Oregon, the State Engineer is directed to reject, or to grant subject to municipal use, all applications leading to appropriations which in his judgment would impair municipal water supplies.483 In addition, elsewhere in the water rights statute, many privileges and exemptions are accorded to municipalities. 178 N. Mex. Stat. Ann. § § 75-1-4 and 75-1-5 (1968). 479 Kans. Stat. Ann. § 42-311 (1964), fust enacted, Laws 1891, ch. 133. 480 Adams v. Portage In. Res. & Power Co., 95 Utah 1, 11-16, 72 Pac (2d)648 (1937). 481 Kans. Stat. Ann. § § 82a-705, -705a, -709 (1969). South Dakota is another of the States that sets domestic use apart. The water appropriation statute declares, among other things, that it is the established policy of the State that the use of water for domestic purposes is the highest use of water "and takes precedence over all appropriative rights." The term "Vested Rights" includes "Use for domestic purposes as that term is herein defined* * *." Any person or persons desiring to make reasonable use of water from any source for domestic purposes may do so without obtaining a permit from the commission for such use." S. Dak. Comp. Laws Ann. § § 46-1-5(1), 46-1-9, and 46-5-8 (1967). 482 Cal. Water Code § 1460 (West 1956). 483 Oreg. Rev. Stat. § § 537.190(2) (Supp. 1969) and 538.410 (Supp. 1967). |