OCR Text |
Show 420 APPROPRIATION OF WATER appropriated; and (c) the taking for a superior use of a right to water already appropriated for an inferior use. Statutes or constitutions in a majority of the Western States provide orders of preference for one or more of these categories. Some of the statements are brief, others somewhat elaborate. These are summarized under the next ensuing subtopic; but first, some comments about the several purposes of use that are included therein. Bear in mind that each State list of preferences does not necessarily include all of the following purposes. (1) Domestic and municipal. In declarations in which a specific order of preference is stated, domestic use generally has first place. Municipal use is closely associated with domestic. In two States, the first preference goes to domestic and municipal, without distinction. In two others, municipal use takes second place. In the other States, a specific category is not assigned to municipal use.946 The tenor of the statutory preferences is to ignore any distinction between' (a) the strictly domestic use of water by the inhabitants of a municipality for drinking, laundering, and culinary purposes and for the watering of residential lawns and gardens, and (b) the strictly municipal uses of water by the city for firefighting, sanitation, street-cleaning, public parks, public buildings, and the like. An individual may appropriate stream water for his own domestic use in a rural area. A city may make such an appropriation for the combined domestic uses of its inhabitants, in addition to water required for its public functions. The domestic use of water within the city is not deprived of its perferential status by being served along with municipal use. Each of the California and South Dakota statutes declares that the established policy of the State embraces two fundamental aims: (a) recog- nition of the use of water for domestic purposes as the highest use, and (b) protection of the water rights of municipalities for existing and future uses without waste.947 The Kansas and South Dakota laws grant special privileges to users of water for domestic purposes-"domestic use" pertaining to small quantities of water by individuals or family units for household purposes including watering of small gardens and lawns. They appear to be applicable particularly to rural areas, for nothing in either statute contemplates a breakdown of a city's water supply into individual citizen use and public municipal use. On the contrary, in Oregon statute accords "human consumption" the first preference although an earlier statute places domestic use first. For a discussion of a 1970 Oregon Court of Appeals decision which appears to have construed these statutes as having a limited effect, see "Use of appropriated water: In time of shortage," below. In view of this decision, the Oregon provisions dealing with other types of uses, as listed in the next subtopic, are not noted in this subtopic. 947Cal. Water Code §§106 and 106.5 (West 1956); S. Dak. Comp. Laws Ann. §46-1-5 (1967). |