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Show Chapter 6 WATER RIGHTS SYSTEMS PERTAINING TO WATERCOURSES THE DUAL SYSTEMS OF WATER RIGHTS Two basic doctrines govern rights to the use of water of western watercourses. They are (1) the doctrine of prior appropriation, and (2) the riparian doctrine. The appropriation doctrine is established in each of the 17 contiguous Western States and Alaska. In 10 of these States, the riparian doctrine is recognized in some degree concurrently with the doctrine of appropriation, and in Hawaii, without such concurrence. This degree of riparian recognition varies widely from one jurisdiction to another: in some States, riparianism, both in law and in fact, is an important part of the State water jurisprudence; in others, very little vestige of the doctrine is left. Eight Western States have generally repudiated the riparian doctrine of water rights. Where the two doctrines exist simultaneously, they are often in conflict. The conflicts between the doctrines and their adjustment have occupied a large part of the attention of western courts throughout the last century.1 A major conflict was heard in the appellate courts of Texas in 1959-62.2 The appropriation doctrine contemplates the acquisition of rights to the use of water by diverting water and applying it to reasonable beneficial use for a beneficial purpose, in accordance with procedures and under limitations specified by constitutional and statutory law or acknowledged by the courts. The water may be used on or in connection with lands away from streams, as well as lands contiguous to streams. A distinctive feature of the doctrine as it was developed in the West is the principle of "first in time, first in right"-the prior exclusive right of the earliest appropriator of water from a particular watercourse to the use of the water to the extent of his appropriation, without material diminution in quantity or deterioration in quality, whenever the water is available; each later appropriator has a like priority with respect to all 1 See Hutchins, Wells A., "History of the Conflict between Riparian and Appropriative Rights in the Western States," Proc, Water Law Conferences, Univ. of Texas, pp. 106-137(1952,1954). 2State v. Valmont Plantations, No. B-20791, Dist. Ct. Hidalgo County, Texas (1959). Appealed to San Antonio Court of Civil Appeals, 346 S. W. (2d) 853 (1961), and appealed to the Texas Supreme Court, Valmont Plantations v. State of Texas, 163 Tex. 381, 355 S. W. (2d) 502 (1962). See also State v. Hidalgo County Water Control & Improvement Dist. No. 18, 443 S. W. (2d) 728 (Tex. Civ. App. 1969), citing other connected cases. (157) |