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Show THE RIPARIAN RIGHT 101 Constitutionality of the South Dakota statute was upheld by the State supreme court.524 A 1967 Texas statute has restricted the exercise of riparian rights, except for domestic or livestock purposes, to the extent of maximum actual application of water to beneficial use made during any calendar year from 1963 to 1967, or until the end of 1970 if works were under construction before the effective date of the act.525 The approach of the Washington Supreme Court to the unused riparian rights question was taken in a series of decisions rendered chiefly in the 1920's. Briefly, the right of a riparian owner to use water on or in connection with his riparian land under standards of reasonable and beneficial use may be protected as against an appropriator so long as the riparian right is so exercised. But if the riparian's right is assailed by an intending appropriator, the riparian must show with reasonable certainty that either at present, or within a reasonable time, he will make proper use of the water on his land.526 no opinion as to whether the common law right had been validly modified by State legislation as construed by the State supreme court. 295 U.S. 142,155-165 (1935). Kansas: 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 & Sedgwickv. Smrha, 192 Kans. 647, 391 Pac. (2d) 93 (1964). The first cited case involved a surface watercourse. The others appear to have involved percolating groundwaters. See chapter 6, note 245. 524Belle Fourche Irr. Dist. v. Smiley, 176 N.W. (2d) 239 (S. Dak. 1970); Knight v. Grimes, 80 S. Dak. 517,127 N.W. (2d) 708 (1964). In Baeth v. Hoisveen, 157 N.W. (2d) 728 (N. Dak. 1968), the North Dakota Supreme Court apparently concluded that unused riparian rights for nondomestic purposes could be validly abrogated by 1955 and related North Dakota legislation, at least as against appropriate rights acquired thereafter, although the court qualified this. And the court did not deal with 1963 North Dakota legislation regarding priority of water rights, eliminating the 1955 definition of riparian rights and requiring no permit for domestic and livestock purposes. See in chapter 6 "Interrelationships of the Dual Water Rights Systems-The Status in Summary: By States-North Dakota." 525 If valid under existing law, claims for such rights as required, showing the dates and volumes of water used, shall be filed with the Texas Water Rights Commission to prevent their being extinguished. Tex. Rev. Civ. Stat. Ann. art. 7542a, § 4 (Supp. 1970). Previously existing legislation has disclaimed any intent to impair vested rights or rights of property. Tex. Rev. Civ. Stat. Ann. arts. 7469, 7507 and 7620 (1954). Relevant provisions in the 1967 statute include Tex. Rev. Civ. Stat. Ann. art 7542a, § § 12 and 14 (Supp. 1970). This 1967 legislation has not been construed by the Texas Supreme Court or courts of civil appeals. S26State v. American Fruit Growers, Inc., 135 Wash. 156, 161, 237 Pac. 498 (1925). See also Brown v. Chase, 125 Wash. 542, 549, 553, 217 Pac. 23 (1923); In re Alpowa Creek, 129 Wash. 9, 13, 224 Pac. 29 (1924); Proctor v. Sim, 134 Wash. 606, 616-619, 236 Pac. 114 (1925); In re Sinlahekin Creek, 162 Wash. 635, 640-641, 299 Pac. 649 (1931); foreshadowed in State ex rel. Liberty Lake Irr. Co. v. Superior Court, 47 Wash. |
