OCR Text |
Show 733 rendered a decision in an original action in quo warranto to inquire into the authority of the Division of Water Resources to regulate the taking of ground waters for beneficial uses; the State agency being involved because of its hearing of protests against the application of a city to appropriate ground water.121 The court held that water rights in Kansas were governed by the common law except as modified by statute; that ground waters were a part of the real property in which they oc- curred, and that both surface and ground waters were owned by the owner of the soil; and that no statute authorized the State administrative agency to regulate or otherwise to interfere with the use and consump- tion of ground waters or to conduct a hearing upon the application of anyone who desired to use them. Later in the same year (1944) a committee appointed by the Gov- ernor recommended legislation that would modify the common law sufficiently to effectuate rights of prior appropriation, and at the ensuing session in 1945 the legislature took action accordingly.122 The act pro- vided that "All water within the state of Kansas is hereby dedicated to the use of the people of the state, subject to the control and regulation of the state in the manner herein prescribed." It also provided that subject to vested rights, all waters within the State might be appro- priated for beneficial use, and specifically stated that surface or ground waters might be so appropriated. Nothing in the act was to impair the vested right of any person except for nonuse. Vested rights were defined as rights to continue the use of water actually applied to any beneficial use at the time of passage of the act or within three years prior thereto, as well as rights to begin use with works then under con- struction provided the works were completed and the water applied to beneficial use within a reasonable time thereafter. Common-law claim- ants were declared to be entitled to compensation in an action at law for proved damages for property taken by an appropriator in connection with an appropriation. Appropriators under the statute were afforded injunctive relief against subsequent diversions by common-law claim- ants "without being required to first condemn possible private rights," as well as against uses of water by subsequent appropriators if necessary to protect their prior rights. The supreme court upheld the validity of the foregoing legislation in an action in the nature of quo warranto for determination as to its constitutionality, upon questions submitted for determination and facts stipulated by the parties.128 The court frankly took a different approach M1 State ex rel. Peterson v. State Board of Agriculture, 158 Kans. 603, 149 Pac. (2d) 604 (1944). See also Arensman v. Kitch, 160 Kans. 783, 791, 165 Pac. (2d) 441 (1946). 122 Kans. Laws 1945, ch. 390; Gen. Stats. Supp. 1947, ch. 82a, art. 7. 128 State ex rel. Emery v. Knapp, 167 Kans. 546, 555-556, 207 Pac. (2d) 440 (1949). |