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Show 642 GROUND WATER RIGHTS withdrawals of ground water, they were given little effect by the courts. In 1944 the court held that the common law of England was the basis of Kansas law and that Kansas had followed riparian rules and a modified English rule with regard to ownership of ground water.80 Although giving English law credit for the riparian doctrine might be questionable, the holding of this case was that under the statutes before the court, the State could not regulate withdrawals of ground water. Earlier the court had approved a very strong statement of the English rule of absolute ownership of percolating water, which was modified to prohibit the drainage of a surface water supply through the use of adjacent wells.81 This situation was remedied in 1945 when the legislature enacted a comprehensive water appropriation scheme82 which includes surface and ground waters without distinction.83 This act requires an application for a permit before withdrawals commence.84 When the Chief Engineer of the Division of Water Resources of the Kansas State Board of Agriculture approves the application, the work is completed in accordance therewith, and the water applied to a beneficial use, the Chief Engineer issues the applicant a certificate of appropriation.85 The rule of "first in time is first in right" ordinarily governs priorities and the priority date is the date of filing the application.86 Common law and statutory claimants' rights to continue the beneficial use of water actually being used on or before June 28, 1945, are protected to the full extent of such use.87 The extent of such right is to be determined by the Chief Engineer, but the determination of such rights is not an adjudication of the relative rights as between holders of these vested rights.88 Although all these vested rights are superior to the appropriative rights of the permittees, there is no order of seniority among the prior rights. This statute has been tested by two leading cases, State ex rel Emery v. Knapp89 and Baumann v. Smrha,90 which admitted its constitutionality. In the Knapp case, the court recognized prior error concerning England's contribution to the riparian doctrine, thereby lessening a restraint on approval of statutory regulations. It went on to observe that because the act dedicates all waters to the use of the people, the court must depart from past practices of 80State v. Kansas Bd. ofAgric, 158 Kans. 603, 149 Pac. (2d) 604, 606-607 (1944). aiEmporia v. Soden, 25 Kans. 588 (1881). 82 Kans. Stat. Ann. § § 82a-701 et seq. (1969). 83Id. §§ 82a-702,-703,and-707. 84Id. § 82a-709. *sId. § 82a-714. 86Id. § 82a-707(c). aiId. § 82a-701(d). 88Id. § 82a-704. 89State ex rel. Emery v. Knapp, 167 Kans. 546, 207 Pac. (2d) 440 (1949). 90Baumann v. Smrha, 145 Fed. Supp. 617 (D. Kans.), affirmed per curiam, 352 U.S. 863 (1956). |
