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Show METHODS OF APPROPRIATING WATER OF WATERCOURSES 289 (See "Statutory-Original Statutory Appropriation Procedures-Other Western States", below). (4) On the other hand, early in the present century, the Nebraska Supreme Court stated that according to the weight of evidence in the case before it, there were very few settlers in northwestern Nebraska in 1880 and 1881. All took what water there was and without regulation or customs of any sort. No one respected any other's rights in water.347 But appropriations of water were made in Nebraska prior to enactment of the first procedural statute in 1889;348 and construction of one's works and diversion and application of the water constituted sufficient assertion of his rights until the rights were challenged.349 In neighboring Kansas, the supreme court said that prior to the first State legislation authorizing appropriation of water, enacted in 1886, rights to use water by priority of possession had not been recognized in the State. Irrigation had not been necessary for the needs of the early home builders, and local customs of appropriating water were invalid. Hence, there were no vested and accrued water rights to be protected by the Congressional Act of 1866.3S0 (5) In Colorado, there is no State administrative supervision over the acquisition of appropriative rights in water. Until 1969, there were statutory requirements for filing which had value, but which were not essential to the validity of the appropriation.351 Idaho has had successive statutes purportedly governing the appropriation of water but which, as noted both above and below, have never been the exclusive means of appropriating water. There is also a so-called "constitutional" or nonstatutory method which is completely informal and involves mere diversion of water and application to beneficial use.352 It is advantageous to follow the statute, but not necessary. (6) During the war with Mexico, New Mexico promulgated the Kearney Code, which provided for continued enforcement of existing laws concerning watercourses.353 Declarations by the first Territorial Legislature of New Mexico, which then included what is now Arizona, impliedly recognized existence of the doctrine of appropriation by authorizing all inhabitants to construct either private or common acequias for their water supplies. But it established no procedure for obtaining water rights.354 The first Legislature of the separate Territory of Arizona specifically affirmed the right to appropriate streams of . Coffee, 67 Nebr. 500, 518-520, 93 N. W. 713 (1903). 348Nebr. Laws 1889, ch. 68. "'Kearney Water & Electric Powers Co. v. Alfalfa In. Dist., 97 Nebr. 139, 143-144, 149 N.W. 363(1914). 3S0Clarkv.Allaman, 71 Kans. 206, 240-241, 80Pac. 571 (1905). 351 Colo. Rev. Stat. §148-4-1 to 148-4-7 (1963),repealed, Laws 1969, ch. 373, § lO.Black v. Taylor, 128 Colo. 449, 457-458, 264 Pac. (2d) 502 (1953). 3S2Nielson v.Parker, 19 Idaho 727, 730-731, 733, 115 Pac. 488 (1911). 353 Kearney Code, §1. 354 N. Mex. Laws, July 20, 1851. 450-486 O - 72 - 21 |
