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Show METHODS OF APPROPRIATING WATER OF WATERCOURSES 315 in completing an appropriation are not judicial findings but are merely for their own guidance in performing their statutory duties. Hence, they are not such as to render the provision unconstitutionl.447 On the other hand, provisions in the California statute for judicial review of administrative action were held unconstitutional. They were replaced by a procedure which the supreme court declared would constitute the proper remedy.448 (2) Effect on riparian rights. Validity of some of the State appropriation statutes with respect to their effect upon riparian rights has been called in question. For example, the Texas Supreme Court declared that the several water appropriation statutes down to and including that of 1917 were valid in so far as they authorized appropriation of stream waters without violation of existing riparian rights.449 Under "Purposes of the legislation," mention has been made of the Oregon, Kansas, and South Dakota statutes which contained provisions restricting operation of the riparian doctrine when it conflicted with the appropriative principles that were being propounded by the legislation. The Oregon provisions were approved by the State supreme court and by a United States Court of Appeals.450 The Kansas provisions likewise were held by State and Federal courts to be not invalid on the issues involved.451 Constitutionality of the South Dakota legislation of 1955 has been upheld by the State supreme court in 1964 4S2 Exclusiveness of the statutory procedure.-(I) Generally held to be exclusive. In most States in which administrative procedure for appropriating ^Department of Public Works v. Superior Court, 197 Cal. 215, 221-222, 239 Pac. 1076 (1925). "*Mojave River In. Dist. v. Superior Court, 202 Cal. 717, 725-726, 262 Pac. 724 (1927); Temescal Water Co. v. Department of Public Works, 44 Cal. (2d) 90, 99-100, 106, 280 Pac. (2d) 1 (1955); Cal. Water Code § 1360 (West Supp. 1970). wMotl v. Boyd, 116 Tex. 82, 124, 286 S.W. 458 (1926). 450 In re Hood River, 114 Oreg. 112, 173-182, 227 Pac. 1065 (1924); California-Oregon Power Co. v. Beaver Portland Cement Co., 73 Fed. (2d) 555, 562-569 (9th Cir. 1934). Compare California Oregon Power Co. v. Beaver Portland Cement Co., 295 U. S. 142, 155-165 (1935). See FitzStephens v. Watson, 218 Oreg. 185, 344 Pac. (2d) 221 (1959). 451 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, 375 U.S. 7 (1963), rehearing denied, 375 U.S. 936 (1963V 452Belle Fourche In. Dist. v. Smiley, lie N. W. (2d) 239 (S. Dak. 1970); Knight v. Grimes, 80 S. Dak. 517, 127, N. W. (2d) 708 (1964). In the Belle Fourche case the court said that the "Decision in the Knight case concerned with underground waters is equally applicable to surface waters." 176 N. W. (2d) at 245. Regarding the validity of North Dakota legislation, see Baeth v. Hoisveen, 157 N. W. (2d) 728, 733-734 (N. Dak. 1968), discussed in chapter 6 under "Establishment of the Riparian Doctrine in the West-Interrelationships of the Dual Water Rights Sys- tems-The Status in Summary: By States-North Dakota." |
