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Show PUEBLO WATER RIGHTS IN NEW MEXICO 165 riparian rights (if any) that accrued after such date of establishment.85 Preferences in the appropriation of water are granted to municipalities in various western jurisdictions. Wherever preferences in appropriating water are provided for, domestic use stands highest and municipal use is closely associated with it. This results naturally from the indispensability of water to human life, and from the overriding need for water in other activities carried on in communities both large and small. These matters are discussed in the last part of chapter 7. Briefly, as applied to conflicting applications to appropriate water, no problem of compensation is involved. As applied to the taking for a superior use a right to water already appropriated for an inferior use, particularly in time of water shortage, some constitutional and statutory declarations require compensation and some do not; but in no court decisions on this matter that have come to the author's attention has payment of compensation been held unnecessary.86 Statutes of several States provide for reservation of water to meet the growing needs of municipalities, and the principle has been sanctioned in several court decisions. (See, in chapter 7, "Who May Appropriate Water.") The details differ; but in most instances the process comprises appropriation of water to meet future reasonable needs of the municipality and its inhabitants, the effect of which is to prevent the accrual of intervening rights pending the time the city will require a larger proportion of the water supply than needed at the time of initiating the appropriation. The appropriation for both present and future uses relates to specific quantities of water; if the city outgrows its estimates, additional appropriations must be made with priorities as of such times, or other water supplies must be purchased or condemned. Use of surplus water until needed by the city may be made by others in the meantime; but overestimates by these surplus water users of the longevity of their water tenure are made at their peril, for from the beginning they are on notice that the law is granting them water rights that are temporary only. A number of western legislatures and courts have been responsive to the needs of growing cities for larger and larger water supplies. They have devised and sanctioned means of making this possible by appropriating water or by 8S See note 31 supra, regarding riparian rights in California. 86Tex. Rev. Civ. Stat. Ann. art. 7472a (1954), enacted in 1931, provides that appropriations for other than domestic or municipal purposes, made after May 17, 1931, are subject to appropriation, without compensation, by municipalities for domestic and municipal purposes. The statute also provides that this provision does not apply to any stream which forms an international boundary, meaning the Rio Grande River. The only part of the statute the constitutionality of which was disputed and upheld was the Rio Grande exception, which the court determined did not reflect a repugnant classification. El Paso County W. I. Dist. No. 1 v. El Paso, 133 Fed. Supp. 894, 906-907 (W. D. Tex. 1955), reversed in part but not on matters here under consideration, 243 Fed. (2d) 927 (5th Cir. 1957). Validity of the statute with respect to other Texas streams was not involved. |