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Show 6 STATE WATER POLICIES Property of the State or of the People Under the North Dakota constitution, all flowing streams and natural watercourses are to remain forever the property of the State for mining, irrigating, and manufacturing purposes.23 The Wyoming declaration of State ownership relates to the water of all natural streams, springs, lakes, or other collections of still water within the State boundaries.34 The constitutions of Colorado and Nebraska dedicate the use of the water of all natural streams to the people of the State.25 Statutes of several other States contain similar declarations.26 The Idaho Supreme Court considered it clear that title to the public waters of the State is vested in the State for the use and benefit of all citizens under such rules and regulations as may be prescribed from time to time by the legislature.27 This is not an interest or title in the proprietary sense, but rather in a sovereign capacity as representative of all the people for the purpose of guaranteeing that the common rights of all shall be equally protected. In 1900 the Montana Supreme Court observed that "the state of Montana has by necessary implication assumed to itself the ownership, sub modo, of the rivers and streams of this state, and, by section 1880 et seq. of the Civil Code, has expressly granted the right to appropriate the waters of such streams, * * * ,"28 When, two decades later, this court repudiated the riparian doctrine in toto and held that the comment upon riparian rights in each of its previous decisions was purely obiter dictum, it held that the corpus of running water in natural streams in the State was publici juris-the property of the public.29 Public Supervision over Waters Basis of State Control The Wyoming constitution declares that the control of waters must be in the State, which in providing for its use shall equally guard all the various interests involved.30 An Idaho statute makes a similar declaration.31 Still other statutes assert the public interest in this public function. For example, laws of both California and South Dakota say that the protection of 23 N. Dak. Const., art. XVII, § 210. MWyo. Const., art. VIII, § 1. "Colo. Const., art. XVI, § 5; Nebr. Const., art. XV, § 5. 26Cal. Water Code § 102 (West 1956); Idaho Code § 42-101 (1948); Kans. Stat. Ann. § 82a-702 (1969); S. Dak. Comp. Laws Ann. § 46-1-3 (1967); Tex. Rev. Civ. Stat. Ann. art. 7467 (1970). "Walbridge v. Robinson, 22 Idaho 236, 241-242, 125 Pac. 812 (1912). See Coulson v. Aberdeen-Springfield Canal Co., 39 Idaho 320, 323-324, 227 Pac. 29 (1924). 28Smith v. Deniff, 24 Mont. 20, 21-22, 60 Pac. 398 (1900). "Mettler v. Ames Realty Co., 61 Mont. 152,161-162, 201 Pac. 702 (1921). 30Wyo. Const., art. I, § 31. 31 Idaho Code § 42-101 (1948). |