| OCR Text |
Show THE RIPARIAN DOCTRINE IN THE WEST 11 New Mexico Riparian water-use doctrine repudiated (a) expressly by the Territorial and State supreme court (1891 and 1945), (b) impliedly by the constitutional declaration that all unappropriated stream water is subject to appropriation.49 Status: Doctrine never recog- nized in the jurisdiction. North Dakota Riparian doctrine recognized (a) by Dakota Territorial statute in 1866 but repealed in 1963, (b) by Territorial supreme court in 1888, affirmed by United States Supreme Court in 1890, (c) again by State supreme court in 1917 and 1940. (d) 1955 act declared rights of riparian owners, other than municipalities, comprise domestic and stockwatering purposes, but this was eliminated in 1963. (e) 1955 act also amended statute regarding waters subject to appropriation, (f) 1963 legislation added various provisions as to priority of water rights and water-use preferences, no permit required for domestic and livestock purposes, (g) In 1968, State supreme court apparently concluded unused riparian rights to irrigate from 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.50 Status: Riparian doctrine recognized in North Dakota by legislation as early as 1866 but provisions deleted in 1963. Also recognized by courts in several decisions. In 1968, State supreme court apparently concluded unused riparian rights for nondomestic purposes could be validly abrogated by the 1955 and related legislation, at least as against appropriative rights acquired there- after, although the court qualified this. And, the court did not deal with 1963 legislation regarding priority of water rights, eliminating the 1955 definition of riparian rights, and requiring no permit for domestic and livestock purposes. Oklahoma Riparian doctrine recognized (a) by Territorial statute in 1890, 49(a) Trambley v. Luterman, 6 N. Mex. 15, 25, 27 Pac. 312 (1891); State ex rel. State Game Comm'n v. Red River Valley Co., 51 N. Mex. 207, 218, 225, 182 Pac. (2d) 421 (1945). (b) N. Mex. Const, art. XVI, § § 2 and 3 (1911). 50 (a) Terr. Dak. Laws 1865-1866, ch. 1, § 256, Civ. Code § 255 (1877), N. Dak. Cent. Code Ann. § 47-01-13 (1960), repealed, Laws 1963, ch. 419, § 7. (b)Sturrv.Beck, 6 Dak. 71, 50 N.W. 486 (1888), affirmed, 133 U.S. 541, 547, 551 (1890). (c) McDonough v. Russell-Miller Mill. Co., 38 N. Dak. 465, 471472, 165 N.W. 504 (1917); Johnson v. Armour & Co., 69 N. Dak. 769, 776-777, 291 N.W. 113 (1940). (d) N. Dak. Laws 1955, ch. 345, § 2, Cent. Code Ann. § 61-01-01.1 (1960), entire subject matter deleted from section and other provisions substituted, Laws 1963, ch. 419, § 1. (c) N. Dak. Laws 1955, ch. 345, § 1, Cent. Code Ann. § 61-01-01 (1960). (f) N. Dak. Laws 1963, ch. 419, Cent. Code Ann. § 61-01-01.1 (Supp. 1969). (g)Baeth v.Hoisveen, 157 N.W. (2d) 728 (N. Dak. 1968). |
