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Show 210 WATER RIGHTS SYSTEMS PERTAINING TO WATERCOURSES still entitled to compensation for any substantial deprivation of his riparian right, or to a physical solution-a valid exercise of the State's police power.239 Kansas The doctrine of riparian rights was recognized and applied in early decisions of the Kansas Supreme Court, which agreed that it might exist in the same State with the doctrine of prior appropriation. The appropriation doctrine, however, could not operate to the destruction of previously vested common law rights.240 Following a period of uncertainty resulting from a supreme court decision,241 and attempted corrective legislation,242 another supreme court decision resulted in rendering the legislation completely ineffective.243 239 In Joslin v. Marin Mun. Water Dist., 67 Cal. (2d) 132, 142-143, 429 Pac. (2d) 889, 60 Cal. Rptr. 377 (1967), the California Supreme Court said "... since there was and is no property right in an unreasonable use, there has been no taking or damaging of property by the deprivation of such use and, accordingly, the deprivation is not compensable." The court said that in view of the State's constitutional amendment limiting the use of water only to beneficial uses "to the fullest extent of which they are capable," and providing that "waste or unreasonable use" shall be prevented and that conservation shall be exercised "in the interest of the people and for the public welfare," "in the instant case the use of such waters as an agent to expose or to carry and deposit sand, gravel and rocks, is as a matter of law unreasonable within the meaning of the constitutional amendment. (See Peabody v. City of Vallejo, supra, 2 Cal. 2d 351, 369, 40 P. 2d 486.)" 67 Cal. (2d) at 141. The court held that a riparian landowner could not require that an upstream appropriator pass along the streamflow to serve "the amassing of mere sand and gravel which for aught that appears subserves no public policy . .. ." Id. The court said that "unlike the unanimous policy pronouncements relative to the use and conservation of natural waters, we are aware of none relative to the supply and availability of sand, gravel and rocks in commercial quantities." 67 Cal. (2d) at 140-141. The court noted that in Peabody v. Vallejo a lower riparian had asserted a right as against an upstream appropriator to have all the waters flow without interruption since by normally overflowing his land they not only deposited silt thereon but also washed out salt deposits on portions of his land. 67 Cal. (2d) at 139. In that case the court said: "So far as we are advised, this asserted right does not inhere in the riparian right at common law, and as a natural right cannot be asserted as against the police powers of the State in the conservation of its waters. This asserted right involves an unreasonable use-as contemplated by the Constitution." 2 Cal. (2d) at 369, quoted in 67 Cal. (2d) at 139. In the instant case, at 429 Pac. (2d) 898, the court distinguished United States v. Gerlach Live Stock Co., 339 U. S. 725 (1950), discussed at note 215 supra, as a case involving the use of the natural overflow for irrigation, a recognized reasonable use. 240Clark v.Allaman, 71 Kans. 206, 237-239, 241, 80 Pac. 571 (1905). 241 Frizell v. Bindley, 144 Kans. 84, 91-93, 58 Pac. (2d) 95 (1936). 242 Kans. Laws 1941, ch. 261. 243 State ex rel. Peterson v. State Board of Agriculture, 158 Kans. 603, 605-614,149 Pac. (2d) 604 (1944). |
