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Show 204 WATER RIGHTS SYSTEMS PERTAINING TO WATERCOURSES Modification of riparian principles. -Where the riparian right entitled the holder to use water inefficiently and wastefully, or to keep the right intact indefinitely while making no use of the water, then the successful assertion of that right could become or could threaten to become an impediment to water development. As above noted (see "Reasons for the Conflict"), modifications of riparian principles in the public interest in various States, as a result of conflicts, have consisted of lessening or removing the obstructive aspects of the early common law principles. Measures to solve the problem of the unused riparian right were undertaken early in the 20th century. These developments have continued. Following are brief descriptions of some of the approaches that have been taken: Important legislative limitations upon riparian rights include those of Oregon, South Dakota, and Kansas, which appear to have generally restricted the exercise of such rights, as vested riparian rights, to the extent of actual application of water to beneficial use made at the time of the enactment of water appropriation statutes or, in certain cases, shortly thereafter.208 In Kansas, common law claimants may recover provable damages for property taken by an appropriator, but an appropriator may enjoin diversions begun subsequently by riparian claimants.209 The Alaska Water Use Act of 1966 apparently purports to phase out the riparian doctrine by, among other things, recognizing existing beneficial uses of water under the common law and declaring them to be lawful appropriations under the act.210 The riparian right has been of major importance in California, although a 1928 constitutional amendment has limited the exercise of water rights to "reasonable beneficial use."211 These and other approaches that have been taken in the different States are discussed in more detail elsewhere in this chapter. The question of abrogating riparian rights. -The courts of the more arid States, which have generally repudiated the riparian water rights doctrine, usually took the view that in those jurisdictions the doctrine had never existed. Riparian rights, that is, never had vested. But in a Federal case arising in Nevada,212 the Federal court said riparian rights of contesting riparians that were adjudicated in conformance with an early decision of the Nevada Supreme Court recognizing such rights213 were not affected by the overruling of that decision and negation of the riparian doctrine 13 years later.214 208Oreg. Rev. Stat. § 539.010 (Supp. 1955); S. Dak. Comp. Laws Ann. § 46-1-9 (1967); Kans. Stat. Ann. § 82a-701 (1969). 209Kans. Stat. Ann. § § 82a-716 and -717a (1969). 210Alaska Stat. § 46.15.060 (Supp. 1966). 211 Cal. Const., art. XIV, § 3. 212 Union Mill & Min. Co. v. Dangberg, 81 Fed. 73, 85, 92, 115-116 (C.C.D. Nev. 1897). 213 Vansickle v. Haines, 7 Nev. 249 (1872). 214In Jones v. Adams, 19 Nev. 78, 6 Pac. 442 (1885). |
