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Show INTERRELATIONSHIPS OF THE DUAL WATER RIGHTS SYSTEMS 203 Nevada the supreme court made its final decision to abandon the riparian doctrine after having accepted that doctrine for 13 years.204 Results in the other States.-AH of the contiguous States on the 100th meridian and those on the Pacific Coast, portions of which are generally humid and other portions generally arid or semiarid, originally accepted both the riparian doctrine and the doctrine of prior appropriation. These two theories proved so conflicting when applied to the assertion of both kinds of rights on the same stream that adjustments in most jurisdictions resulted in modification of riparian principles. But this was not done uniformly. Hence, the extent of modification of the riparian doctrine and the accompanying degree of effectiveness of the appropriative principle vary considerably throughout these nine dual system States. Alaska, since the latter part of the 19th century, has recognized the appropriation doctrine, and by statute in 1917 applied riparian principles to a limited extent to certain mining claims.205 However, as noted in more detail later under "The Status in Summary: By States-Alaska," the Alaska Water Use Act of 1966 apparently purports to phase out the riparian doctrine as such by, among other things, recognizing existing beneficial uses of water under the common law or customary appropriation or use and declaring them to be lawful appropriations under the Water Use Act.206 In Hawaii, on the other hand, riparian rights have been recognized in some degree but appropriations of water not at all.207 Recourse of the appropriator where riparian rights attached to all the water.-To hold that the rights of owners of riparian lands along a stream attached to all the water of the source necessarily left no water open to appropriation. In such case, an appropriation could become effective only upon the nullification of impeding riparian rights by some process sanctioned by law, such as grant, condemnation, or prescription. The right of eminent domain may be exercised for irrigation purposes by public entities and public service companies generally, and in some jurisdictions in greater or less degree by other enterprises, even including individuals. Riparian claims have been satisfied in various cases by contract or condemna- tion, but this necessitated finanical resources beyond the ability of small groups even where they had the power to condemn. Prescription, however, has been a potent factor in establishing appropriative rights despite the existence of downstream riparian lands for which riparian rights could have been adjudicated had their owners chosen to assert them. 204 Jones v. Adams, 19 Nev. 78, 84-88, 6 Pac. 442 (1885). In these regards, see chapter 10 and the earlier discussion at notes 152 to 156. 205 Alaska Laws 1917, ch. 57, Comp. Laws Ann. § 47-3-35 (1949). 206 Alaska Stat. § 46.15.060 (Supp. 1966). 207Carter 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 Or. 1931), certiorari denied, 284 U. S. 677 (1931). |
