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Show THE RIPARIAN DOCTRINE IN THE WEST Kansas (a) Riparian doctrine recognized in 1877. (b) Doctrine elabo- rated in 1905 court opinion, which declared that the Territory adopted the riparian doctrine as part of the common law. (c) Legislation in 1945, amended in 1957, limited vested riparian rights to beneficial use prior to enactment or, if works were then under construction, within a reasonable time thereafter. Claimants holding unused rights could be enjoined by appropriators from making subsequent diversions, although compensation could be had in an action for damages for any property taken from the claimant by an appropriator. Domestic uses exempt from appropri- ation permit requirements, although such uses initiated after 1945 legislation constitute appropriative rights, (d) Constitutionality upheld by State and Federal courts.45 Status: Vested riparian rights limited to beneficial use prior to enactment of 1945 legislation. Claimants holding unused nondomestic rights could be enjoined by appropriators from making subsequent diversions, although compensation could be had in an action for damages for any property taken from claimant by an appropriator. Montana Long considered a doubtful State because of (a) references to riparian doctrine in early decisions and (b) dicta in 1900 decision, (c) Riparian water use doctrine completely repudiated by supreme court in 1921 and 1925.46 Status: Doctrine declared never to have prevailed in Montana. Nebraska (a) Riparian doctrine, as modified by the irrigation statutes, recognized late in the 19th century and (b) thoroughly considered Falls Land & Water Co., 224 U.S. 107, 121-125 (1912). (d) Jones v.Mdntire, 60 Idaho 338, 352, 91 Pac. (2d) 373 (1939). (e) Weeks v. McKay, 85 Idaho 617, 382 Pac. (2d) 788 (1963). 4S(a) Shamleffer v. Council Grove Peerless Mill Co., 18 Kans. 24, 31-33, 26 Am. Dec. 765 (1877). (b) Clark v. Allaman, 71 Kans. 206, 224-229, 237-241, 80 Pac. 571 (1905). (c) Kans. Laws 1945, ch. 390, amended, Laws 1957, ch. 539, Stat. Ann. § 82a-701 et seq. (1969). (d) 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 denied, 375 U.S. 936 (1963); Hesston & Sedgwick v. Smrha, 192 Kans. 647, 391 Pac. (2d) 93 (1964). The first cited case involved a surface watercourse. The others appear to have involved percolating ground water. In this regard, see chapter 6, note 245. 46 (a) Thorp v. Woolman, 1 Mont. 168, 171-172 (1870); Fitzpatrick v. Montgomery, 20 Mont. 181, 185, 50 Pac. 416 (1897); Haggin v. Salle, 23 Mont. 375, 381, 59 Pac. 154 (1899). (b) Smith v. Denniff, 24 Mont. 20, 21-23, 60 Pac. 398 (1900). (c) Mettler v. Ames Realty Co., 61 Mont. 152, 157-158, 165, 166, 201 Pac. 702 (1921); Wallace v. Goldberg, 72 Mont. 234, 244, 231 Pac. 56 (1925). |