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Show 114 THE RIPARIAN DOCTRINE respecting uncompleted works if completed within a reasonable time there- after.585 (2) The Kansas Legislature enacted a statute in 1945, and substantially amended it in 1957, which, among other things, follows the lead of Oregon in limiting "vested right" to continuance of the use of water actually applied to beneficial use on or before the effective date of the 1945 act, or within a reasonable time thereafter by means of works then under construction. This includes domestic use. Use of water for domestic purposes after such date to the extent that it is beneficial constitutes an appropriation, although such use is exempt from appropriation permit requirements; for all other purposes, the water must be appropriated.586 While common law claimants without vested rights could be enjoined by appropriators from making subsequent diversions, compensation could be had in an action at law for damages proved for any property taken from a common law claimant by an appropriator. (3) Prior to 1921, the South Dakota Supreme Court adhered to the principle that the riparian right of use not only for domestic purposes but for reasonable irrigation was a vested riparian right.587 In that year it followed the Oregon court decision in Hough v. Porter,5** in holding that public land entered after the enactment of the Desert Land Act acquired riparian rights only for domestic purposes.589 But in 1940, as a result of the United States Supreme Court decision in California Oregon Power Company v. Beaver Portland Cement Company,590 noted above, the South Dakota court reestab- lished the right to irrigate riparian land in South Dakota with respect to lands patented after 1877 as well as before.591 585Oreg. Laws 1909, ch. 216, § 70, Rev. Stat. § 539.010 (Supp. 1955). The validity of this restrictive legislation was sustained by State and Federal courts on the several points presented for determination. In re Hood River, 114 Oreg. 112, 173-182, 227 Pac. 1065 (1924), vote of 4 to 3; California-Oregon Power Co. v. Beaver Portland Cement Co., 73 Fed. (2d) 555, 562-569 (9th Cir. 1934), vote of 2 to 1. 586 Kans. Laws 1945, ch. 390, Laws 1957, ch. 539, Stat. Ann. §§ 82a-701(d),-705, and -705a (1969). The constitutionality of these provisions was upheld by State and Federal courts on the several points presented for determination. 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 dismissed "for want of a substantial Federal question," 375 U.S. 7 (1963), rehearing denied, 375 U.S. 936 (1963); Hesston & Sedgwick v. Smrha, 192 Kans. 647, 391 Pac. (2d) 93 (1964). The first cited case involved a surface watercourse. The others appear to have involved percolating ground waters. In this regard, see chapter 6, note 245. sslSt. Germain Irrigating Ditch Co. v. Hawthorne Ditch Co., 32 S. Dak. 260, 267, 143 N.W. 124(1913). sssHough v. Porter, 51 Oreg. 318, 383^07, 95 Pac. 732 (1908), 98 Pac. 1083 (1909), 102 Pac. 728 (1909). SMCook v.Evans, 45 S. Dak. 31, 38-39, 185 N.W. 262 (1921). 590California Oregon Power Co. v. Beaver Portland Cement Co., 295 U.S. 142, 158, 160-164 (1935). S9iPlatt v. Rapid City, 67 S. Dak. 245, 248-250, 291 N.W. 600 (1940). |