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Show REMEDIES FOR INFRINGEMENT 245 technical and unsubstantial. Conceding, however, that this town's right should be protected by the decree, the prior right could be declared and, if necessary, the duty imposed on the defendant to make up the loss, if any, in kind, thus supplementing the town's supply to the extent of the loss by means other than by the percolating water process. We find no justification in law or the evidence for this absolute injunction in favor of the town of Suisun where it appears that in any event other forms of relief are available and would be adequate.251 Kansas.-In 1945, the Legislature of Kansas passed an act, which was extensively amended in 1957, that undertook to define and protect as vested rights the common law riparian rights to the continued use of water to the extent of actual application thereof to beneficial use at the time of enactment, or within a reasonable time thereafter with works then under construction, all surplus unappropriated flowing water being thereafter subject to appropriation under the statute.252 While common law claimants without vested rights could be enjoined by appropriators from making subsequent diversions, compensa- tion could be had in an action at law for damages for any property taken from a common law claimant by an appropriator.253 The validity of the Kansas statute has been sustained by both State and Federal courts on the several points presented for determination.254 Physical Solution (1) The California constitutional amendment of 1928 compels trial courts in water cases, before issuing a decree entailing a great waste of water in order to safeguard a prior right to a small quantity of water, to ascertain whether there exists a physical solution of the problem that will avoid the waste and at the same time not unreasonably and adversely affect the property right of the paramount holder.255 If no physical solution is suggested by the parties, it is the duty of the trial court to work out one independently of them. No 2S1 See also the discussion under "Physical Solution," infra. 2S2Kans. Laws 1945, ch. 390, Laws 1957, ch. 539, Stat. Ann. § 82a-701(d) (1969). 2S3 Domestic uses are exempt from appropriation permit requirements, although domestic use initiated after the 1945 enactment shall constitute an appropriative right. Kans. Stat. Ann. § § 82a-705,-705a, and -707(b) (1969). 2S4See chapter 6, note 245. The riparian-appropriation situations in the foregoing States (Nebraska, California, and Kansas) also are discussed in chapter 10 under "The Riparian Right-Measure of the Riparian Right-As Against Appropriators." 255 Lodiv. East Bay Municipal Util. Dist, 7 Cal. (2d) 316, 339-340, 60 Pac. (2d) 439 (1936). "In attempting to work out such a solution the policy which is now part of the fundamental law of the state must be adhered to." |
