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Show PERCOLATING WATERS 643 considering these cases in light of individual interests alone and now consider them on the basis of interests of the people. It found no reason why the legislature could not so alter water rights and held the act to be constitu- tional. In the Baumann case, a case involving ground water rights, the Federal district court was asked to declare the act unconstitutional under the Fourteenth Amendment to the Federal Constitution. It declined to do so on the ground that a State may alter its system of water rights because of its unsuitability to conditions in the State, provided vested rights are protected. The court also construed the Knapp case as having overruled earlier Kansas cases. Thus, the act clearly overcomes prior objections to legislation that regulates withdrawal of ground water. Montana Prior to the enactment of a controlling statute, the Montana court announced several times in dicta that percolating ground waters were subject to the American rule of reasonable use.91 In 1961, the legislature adopted a prior appropriation law for ground water.92 Under this act "ground water" means any fresh water under the surface of the land, including water under any surface body of water.93 Any person claiming a right to withdraw ground waters or the administrator of the Montana Water Resources Board may initiate a hearing to ascertain existing rights in the area involved.94 At this hearing, the administrator may modify or confirm the boundaries of the area, determine priority of rights, and define quantitatively the extent of all rights being there considered.95 Although the Montana system is basically not a permit system, where the evidence shows a ground water shortage has occurred or is likely to occur, the administrator may designate certain areas as controlled ground water areas.96 Permits must be obtained to initiate appropriations therefrom.97 Nebraska There is no general ground water allocation statute in Nebraska. The law of rights in percolating water is provided primarily by case law. 91 See Hutchins, W. A., "The Montana Law of Water Rights" (1958). 92 Mont. Rev. Codes Ann. § § 89-2911 et seq. (1964). 93 Mont. Rev. Codes Ann. § 89-2911 (a) (Supp. 1965). 94Mont. Rev. Codes Ann. § 89-2916 (1964). 95Id. § 89-2917. 96Id. § § 89-2914 and -2915, discussed under "Designated Critical or Other Ground Water Areas," infra. 91Id. § 89-2918. |