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Show INTERRELATIONSHIPS OF THE DUAL WATER RIGHTS SYSTEMS 211 In the next year, 1945, the legislature passed a new act, which was extensively amended in 1957.244 This legislation followed the much earlier Oregon example of limiting vested rights of common law claimants to use of water actually applied to beneficial use at the time of the 1945 enactment or within a reasonable time thereafter with use of works then under construction. Common law claimants without vested rights could be enjoined by appropria- tors from making subsequent diversions, although compensation could be had in an action at law for damages proved for any property taken from a common law claimant by an appropriator. The validity of the Kansas statute has been sustained by both State and Federal courts on the several points presented for determination.245 Nebraska After decisions had been rendered late in the last century recognizing the common law riparian doctrine, the Nebraska Supreme Court in 1903 discussed at considerable length principles underlying the relative rights of riparian landowners and appropriators on the same stream. Concurrence of the two doctrines was recognized, preference between conflicting claimants to be determined by the time when either right accrued.246 This decision, in Crawford Company v. Hathaway, has been superseded in certain respects by the more recent 1966 decision in Wasserburger v. Coffee.7*1 The court indicated that a riparian right to the use of a watercourse "may be superior" to a competitive appropriative right if the riparian land passed into private ownership from the public domain prior to April 4,1895, the effective date of the irrigation act of 1895, and provided the riparian land has not subsequently 244 Kans Laws 1945, ch. 390, Laws 1957, ch. 539, Stat. Ann. § 82a-701 et seq. (1969). ™State 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 de- nied, 375 U. S. 936 (1963);Hesston & Sedgwick v. Smrha, 192 Kans. 647, 391 Pac. (2d) 93 (1964). The Emery case, supra, involved a surface watercourse. The other cases involved percolating groundwaters. The opinion in the Hesston case, supra, does not disclose the source of water it involved but a former opinion in the case indicates it dealt with rights to use waters of the Equus Beds. 184 Kan. 233, 336 Pac. (2d) 428 (1959). In this regard, it may be noted that in a recent decision upholding the validity of 1955 South Dakota legislation, the court said that a previous decision upholding its validity in a case involving underground waters was equally applicable to surface watercourses. Belle Fourche In. Dist. v. Smiley, 176 N. W. (2d) 239, 245 (S. Dak. 1970). See also Baeth v. Hoisveen, 157 N. W. (2d) 728 (N. Dak. 1968). *"CrawfordCo. v.Hathaway, 67 Nebr. 325,93 N. W. 781 (1903). As against appropriators, riparian rights extend only to the ordinary flow, not to floodwaters. Id. 241Wasserburger v. Coffee, 180 Nebr. 147, 141 N. W. (2d) 738 (1966), modified at 180 Nebr. 569, 144 N. W. (2d) 209 (1966). |
