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Show 732 tion," 112 and later that the riparian owner might lawfully use water for his own domestic and stock-watering purposes.113 In 1905, in Clark v. Allaman,lli the court extensively reviewed the subject of riparian and appropriative rights; held that the common-law doctrine of riparian water rights was fundamental in the jurisprudence of the State; that the common-law doctrine included the reasonable use of water for irrigation purposes after the primary uses for domestic purposes had been subserved; and that the common-law doctrine had been modified by statutes authorizing the appropriation of water which, however, could not lead to the destruction of previously vested common-law rights. The two doctrines, it was believed, could exist in the same State. There was no departure from these principles until the supreme court rendered its decision in 1949 construing the legislation of 1945, although the cases involving riparian rights that reached the supreme court during that period were not numerous.115 It was held in 1936 that the appropriation statute of 1886 did not confer upon a riparian owner any priority as against other riparian owners whose titles ante- dated the statute.118 In 1944, in a case involving ground waters, the common-law doctrine was reaffirmed with respect to both surface and ground waters;117 and in 1949 theories concerning the relative rights of upper and lower riparian owners to the use of water were expounded.118 Various legislative acts relating to the use of ground waters were passed and some of them amended from time to time,119 and a few decisions of the supreme court prior to 1944 indicated an early adoption of the rule of absolute ownership of percolating waters and a later tendency toward modification of the strict rule; 12° but the status of the law of ground waters seemed uncertain. In 1944 the supreme court 112 Shamleffer v. Council Grove Peerless Mill Co., 18 Kans. 24, 33 (1877). ™Emporia v. Soden, 25 Kans. 588, 604, 606, 37 Am. Rep. 265 (1881). In Campbell v. Grimes, 62 Kans. 503, 505, 64 Pac. 62 (1901), the upper riparian owner was limited to such water as was needed "for his own beneficial uses." 1X4 Clark v. Allaman, 71 Kans. 206, 80 Pac. 571 (1905). 115 For statements by the court during the earlier part of the period, see Wallace v. Winfield, 96 Kans, 35, 40, 149 Pac. 693 (1915); Atchison, Topeka & Santa Fe Ry. v. Shriuer, 101 Kans. 257, 258,166 Pac. 519 (1917). 119Frizell v. Bindley, 144 Kans. 84, 92, 58 Pac. (2d) 95 (1936). See also Smith v. Miller, 147 Kans. 40,42, 75 Pac. (2d) 273 (1938). 117 State ex rel Peterson v. State Board of Agriculture, 158 Kans. 603, 605, 610, 149 Pac. (2d) 604 (1944). ™Heise v. Schulz, 167 Kans. 34, 41-44, 204 Pac. (2d) 706 (1949). 119 See "Selected Problems in the Law of Water Rights in the West," U. S. Dept. Agr. Misc. Pub. No. 418, pp. 219-223. 120 Emporia v. Soden, 25 Kans. 588, 608-609, 37 Am. Rep. 265 (1881); Jobling v. Tuttle, 75 Kans. 351, 360, 89 Pac. 699 (1907); Gilmore v. Royal Salt Co., 84 Kans. 729, 731, 115 Pac. 541 (1911). |