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Show 196 WATER RIGHTS SYSTEMS PERTAINING TO WATERCOURSES The constitutionality of this 1955 legislation has been upheld by the South Dakota Supreme Court.173 Kansas. - The common law doctrine of riparian rights was declared by the Kansas Supreme Court to be fundamental in the jurisprudence of the State. It included the reasonable use of water for irrigation purposes after the primary uses for domestic purposes had been subserved. Prior to 1945, statutes designed to encourage irrigation were ineffective in modifying the riparian doctrine.174 In that year, however, the legislature passed an act that accomplished its purpose of modifying the common law doctrine sufficiently to effectuate rights of prior appropriation. A number of amendments were madeinl957.175 The new legislation followed the lead of the Oregon water code in declaring vested rights to be rights to continue the use of water actually applied to any beneficial use at the time of the passage of the act, as well as rights to begin use with works then under construction provided they are completed and water applied to a beneficial use within a reasonable time thereafter.176 And the Nebraska judicial precedent, discussed below, was followed by providing in the act that common law claimants are entitled to compensation in an action at law for proved damages for property taken by an appropriator in connection with an appropriation, and that appropriators shall have injunctive relief against subsequent diversions by common law claimants with no vested rights without first being required to condemn the latters' rights.177 The validity of the Kansas statute has been sustained by both State and Federal courts on the several points presented for determination.178 Nebraska. -Existence of the riparian doctrine in Nebraska was recognized in early court decisions as applicable throughout the State. However, other decisions rendered early in the present century had the effect of putting a riparian owner who does not make actual use of water before the time of vesting of appropriative rights in a position in which he has no recourse other 173BelleFourche In. Dist. v. Smiley, 176 N. W. (2d) 239 (S. Dak. 1970); Knight v. Grimes, 80 S. Dak. 517, 127 N. W. (2d) 708 (1964). In the Belle Fourche case the court said that the "Decision in the Knight case concerned with underground waters is equally applicable to surface waters." 176 N. W. (2d) at 245. 11AState ex rel Peterson v. State Bd. of Agriculture, 158 Kans. 603, 605-614, 148 Pac. (2d) 604 (1944). 175Kans. Laws 1945, ch. 390, Laws 1957, ch. 539, Stat. Ann. § 82a-701 et seq. (1969). 176 Kans. Stat. Ann. § 82a-701(d) (1969). 111 Id. § § 82a-716 and -717a. 178State ex rel. Emery v. Knapp, 167 Kans. 546, 555-556, 207 Pac. (2d) 440 (1949); Baumann v. Smrha, 145 Fed. Supp. 617 (D. Kans. 1956), affirmed per curiam, 352 U. S. 863 (1956); Williams v. Wichita, 190 Kans. 317, 374 Pac. (2d) 578 (1962), appeal dismissed "for want of a substantial Federal question," 375 U. S. 7 (1963), rehearing denied, 375 U. S. 936 (1963); Hesston & Sedgwick v. Smrha, 192 Kans. 647, 391 Pac. (2d) 93 (1964). For a discussion of these cases, see note 245, infra. |
