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Show THE RIPARIAN DOCTRINE IN THE WEST 5 unused riparian rights to irrigate from an underground stream could be validly abrogated by the 1955 and related legislation, at least as against appropriative rights, although the court qualified this and it did not deal with the 1963 legislation.30 The early Dakota statute was copied in Oklahoma.31 In 1963, the Oklahoma Legislature undertook to amend it so as to restrain the exercise of unused riparian rights to domestic purposes, to protect previous beneficial uses made under various circumstances, and to make all streamflow in excess of the foregoing public water subject to appropriation.32 Oklahoma Supreme Court decisions have recognized the common law riparian right.33 In a 1968 case, the court held that the 1963 legislation did not apply to previously vested rights.34 By statute, Kansas followed the lead of Oregon (also followed later in South Dakota) in restricting vested water rights to actual beneficial use at the time of enactment of the statute (or, if works were then under construction, within a reasonable time thereafter).35 Common law claimants without vested rights could be enjoined by appropriators from making subsequent diversions, although compensation could be had in an action at law for damages proved for any property taken from a common law claimant by an appropriator. Constitutionality of the statute was sustained in decisions of both State and Federal courts.36 Early decisions of the Nebraska Supreme Court had the effect of eliminating much of the common law advantage of lands claiming unused riparian rights;37 but a 1966 decision tempered their effect.38 The time that riparian lands passed into private ownership is of importance, as against appropriative rights, in this and some other States. 30Baeth v. Hoisveen, 157 N.W. (2d) 728, 733-734 (N. Dak. 1968). 31 Terr. Okla. Stat. § 4162 (1890), Stat. Ann. tit. 60, § 60 (Supp. 1961). "Okla. Laws 1963, ch. 205, Stat. Ann. tit. 60, § 60 (Supp. 1970), and tit. 82, § 1-A (1970). 33Hutchins, W. A., "The Oklahoma Law of Water Rights" 13-22 (1955). 34 Oklahoma Water Resource Bd. v. Central Okla. Master Conservancy Dist., 464 Pac. (2d) 748 (Okla. 1968). 35Kans. Laws 1945, ch. 390, Laws 1957, ch. 539, Stat. Ann. § 82a-701 et seq. (1969). Domestic uses are exempt from appropriation permit requirements, although such uses initiated subsequently shall constitute appropriative rights. "State ex rel. Emery v. Knapp, 167 Kans. 546, 555-556, 207 Pac. (2d) 440 (1949); Baumann v. Smrha, 145 Fed. Supp. 617 (D. Kans. 1956), affirmed per curiam, 352 U.S. 863 (1956); Williams v. Wichita, 190 Kans. 317, 374 Pac. (2d) 578 (1962), appeal dis- missed "for want of a substantial Federal question," 375 U.S. 7 (1963), rehearing denied, 375 U.S. 936 (1963); Hesston & Sedgewick v. Smrha, 192 Kans. 647, 391 Pac. (2d) 93 (1964). %nMcCook In. Water Power Co. v. Crews, 70 Nebr. 109, 96 N.W. 996 (1903), 102 N.W. 249 (1905); Cline v. Stock, 71 Nebr. 70, 98 N.W. 454 (1904), 102 N.W. 265 (1905). 38 Wasserburger v. Coffee, 180 Nebr. 147, 141 N.W. (2d) 738, modified, 180 Nebr. 569, 144 N.W. (2d) 209 (1966). |
