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Show 608 OKLAHOMA 3.2 Nature and Limit of Rights Although new water legislation was enacted in 1963 and subse- quently modified and recodified in 1972, it is appropriate first to consider briefly the State's water law before that date. This is so because the new legislation can only be understood in the light of the older statutes. The territorial legislature initially adopted the riparian system of water rights in 1890 in an act which talked in terms of the so-called "¦natural flow" theory.45 Although some quite early cases seem to have been influenced by that approach, the State supreme court in fairly recent decisions categorically adopted the "reasonable use" theory as a means of adjusting disputes between riparians, so that each riparian has a right to make a use, including a consumptive use, of the water so long as other riparians are not substantially or unreasonably damaged.46 One case went so far as to sanction a non- riparian use authorized by a riparian owner.47 The 1890 act also recognized private ownership of diffused surface water. In addition to this riparian system, prior appropriation legislation was adopted in the territory as early as 1897.48 Patterned after an early Texas statute, the act provided that water subject to appro- priation included the ordinary and underflow of streams, and storm waters. Riparian owners, however, were protected as to the ordinary flow and underflow unless their interests were condemned by appro- priators. In other respects, the statutes contained the basic elements of the appropriation system, including priority in time as a prior right, the relation back doctrine, and the requirement of beneficial use. In addition to the protection afforded riparians as to ordinary and underflow, the statute provided that an appropriator's right was legally protected except that an abutting landowner on a running stream was entitled to use the water for domestic purposes and any landowner within the watershed from which storm or rain water was collected might use the water for domestic purposes. These pro- visions attempted, it would seem, some reconciliation of the appro- priation system with the riparian rights established in 1890. In 1905, a new appropriation act, apparently influenced by Wy- oming legislation, was adopted.49 It provided for a permit system, and the crux of the legislation is in the following section:50 Beneficial use shall be the basis, the measure, and the limit of the right to use of water, and all waters appropriated for irrigation purposes shall be appurten- ant to specified lands owned by the person claiming the right to use the water, so long as the water can be beneficially used thereon. Priority in time shall give the better right. All claims to the use of water shall relate back to the date of the receipt of an application therefor in the office of the state engineer, subject to compliance with the provisions of this chapter and the rules and regulations established thereunder. 45Terr. Okla. Stat, sec. 4162 (1890). This statute remained on the books until 1963. *« See Baker v. Ellis, 292 P. 2d 1037 (Okla. 1956) ; Smith v. Stanolind Oil & Gas Oo., 197 Okla. 499, 172 P. 2d 1002 (1946) ; Broady v. Furray, 163 Okla. 204. 21 P. 2d 770 (1933). *7 Martin v. British American Oil Producing Co., 187 Okla. 193, 102 P. 2d 124 (1940). "Laws Terr. Okla., ch. 19, art. I, pp. 187-95 (1897). 48 Laws Terr. Okla., ch. 21, at 274-301 (1905). 50 Eventually this was incorporated in the 1910 revision. |