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Show DECLARATIONS OF POLICY 17 possibility of obtaining injunctive relief against conflicting appropriative rights.103 In Hawaii, riparian rights have been recognized in a limited degree, but the appropriation system of surface water rights has never been in effect.104 Alaska courts early recognized the appropriation doctrine. They have declared that a Territorial mining statute of 1917 enacted the law of riparian rights to a limited extent.105 However, the Alaska Water Use Act of 1966 apparently purports to phase out such riparian rights.106 Purpose of Use of Water In general, the State water policies contemplate that appropriative water rights may relate to any specific purpose of use of water that is beneficial to the user and that does not conflict with the public welfare. In the constitutions of Western States in which purposes of use of water are mentioned, irrigation (or agriculture) occurs most frequently, followed by manufacturing, power, domestic, and mining. Thus, certain preferences as among domestic, agriculture, and manufactur- ing purposes are accorded in the Colorado, Nebraska, and Idaho constitutions, with the addition of mining in the last named.107 (See "Preferences in Use of Water," below.) Use of water for irrigation, mining, and manufacturing purposes is a public use in Washington; and for these purposes, stream waters in North Dakota remain the property of the State.108 In Texas and South Dakota, irrigation of arid lands is a public purpose; and in the former, the control of water for irrigation, power, and other useful purposes is a public right and duty.109 The constitutions of Oklahoma, South Dakota, and Texas 103 Wasserburger v. Coffee, 180 Nebr. 147,161-164, 141 N.W. (2d) 738 (1966), modified, 180 Nebr. 569, 144 N.W. (2d) 209 (1966). 104 Carter v. Territory of Hawaii, 24 Haw. 47, 57-71 (1917); Territory of Hawaii v. Gay, 31 Haw. 376, 394-417 (1930), affirmed, 52 Fed. (2d) 356 (9th Cir. 1931), certiorari denided, 284 U.S. 677 (1931). 10SNoland v. Coon, 1 Alaska 36, 37-38 (1890); Balabanoffv. Kellogg, 10 Alaska 11, 118 Fed. (2d) 597, 599 (9th Cir. 1940), certiorari denied, 314 U.S. 635 (1941). 106 The 1966 act repealed this mining statute (Alaska Laws 1966, ch. 50, § 2) and provides inter alia that waters occurring in a natural state are reserved to the people for common use, subject to appropriation and beneficial use. Alaska Stat. § 46.15.030 (1966). Without mentioning the term "riparian," the act also provides that a water right lawfully acquired before the effective date of the act, or a beneficial use on the effective date thereof, or made within 5 years prior thereto, or in conjunction with works then under construction under a common-law or customary appropriation or use, is a lawful appropriation under the act and is subject to its applicable provisions. Id. § 46.15.060. This and related provisions of the act are discussed in chapter 6. 107 Colo. Const., art. XVI, § 3; Nebr. Const., art. XV, § 6; Idaho Const., art. XV, § 3. 108 Wash. Const., art. XXI, § 1; N. Dak. Const., art. XVII, § 210. 109 Tex. Const., art. XVI, § 59a; S. Dak. Const., art. XXI, § 7. 450-486 O - 72 - 4 |