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Show 274 APPROPRIATION OF WATER Private Lands "The United States and the state of Montana have recognized the right of an individual to acquire the use of water by appropriation * * *; but neither has authorized, nor, indeed, could authorize, one person to go upon the private property of another for the purpose of making an appropriation, except by condemnation proceedings."262 Use of Water for Beneficial Purposes a Public Use That the use of water for beneficial purposes is a public use is recognized throughout the West. In most jurisdictions it applies even though the use is made by one individual for his own private purposes. Some State constitutions declare only that the use of water appropriated "for sale, rental, or distribution" is a public use.263 Some other constitutional or statutory declarations of public use are broad enough to apply to the use of water generally, without restriction to its application to the delivery to others than the appropriator himself or itself.264 Whether declared in the fundamental law of the State, or in the legislative branch, or by the judiciary, this is a long recognized principle throughout the West. In 1901, the Kansas Supreme Court stated in Lake Koen Navigation, Reservoir & Irrigation Company v. Klein that: "We are met at the threshold of the inquiry in hand with the question as to whether, under the conditions existing in this state, irrigation is such a public purpose as to warrant the permission of the exercise .of the power of eminent domain for its accomplishment. After careful consideration, we answer this question in the affirmative." The court found no difficulty in reaching the conclusion "that the promotion of irrigation in this state is a public use, and that the legislature is authorized in its discretion to commit the power of eminent domain to private persons or corporations for its promotion."265 At this approximate time-in 1899-the irrigated area in Kansas was reported as only 0.3 percent of 262Prentice v. McKay, 38 Mont. 114, 117, 98 Pac. 1081 (1909). 263Cal. Const., art. XIV, § 1; Idaho Const., art. XV, § 1. 264 Uses of water for mining and municipal and certain other purposes, by whomever utilized, are beneficial to the public and are public uses: Alaska Stat. § 09.55.240(b) (Supp. 1962). Sale, rental, distribution, "or other beneficial use" a public use: Mont. Const., art. Ill, § 15. Necessity of water for irrigation a natural want: Nebr. Const., art. XV, § 4. Use of ways and waterways for transporting water for beneficial use a public use: Oreg. Const., art. 1, § 18. Irrigation of arid lands a public purpose: S. Dak. Const., art. XXI, § 7. Conservation and development of water resources for all useful purposes are public rights and duties: Tex. Const., art. XVI, § 59a. Use of water for beneficial purposes as provided in the statute a public use: Utah Code Ann. § 73-1-5 (1968). Use of water for irrigation, mining, and manufacturing purposes a public use: Wash. Const., art. XXI, § 1. 26SLake Koen Navigation, Res. & In. Co. v. Klein, 63 Kans. 484, 488-489, 65 Pac. 684 (1901). |