| OCR Text |
Show PERCOLATING WATERS 647 the legislature's prompt repealing action is that it did not agree with the court's basic holding nor with the court's attempt at reconciliation. The result of the legislature's action is that percolating ground water is subject to a permit system of prior appropriation.127 The Code provides that, where the use of water for different purposes conflicts, domestic and livestock uses are preferred over irrigation and industrial uses which, in turn, are preferred over outdoor recreational uses.128 No other possible uses are mentioned, although municipal uses appear to be included in domestic uses. The only apparent acknowledgment of the legislative change made with regard to percolating waters is an amendment to the section dealing with prescriptive rights which gives a claimant 2 years after July 1, 1963, to claim a right based on 20 years' use prior to that date. The right was previously based on usage before January 1, 1934.129 In the Volkmann case the court stated that where a landowner had applied percolating waters to a reasonable beneficial use on his land and thereby acquired a vested right to such water, the State may not, by subsequent legislation, deprive him of that right without just compensation.130 Oklahoma Prior to the enactment of the Oklahoma Ground Water Law of 1949,131 the American rule of reasonable use governed withdrawals of percolating ground water.132 This was not only the result of following common law principles, but was also the effect of a statute declaring that the owner of land also owned the waters flowing under its surface, but not forming a definite stream.133 The Oklahoma Ground Water Act was adopted in 1949. The ownership statute was amended in 1963 to provide that the landowner owns the percolating water, but that the use of ground water shall be governed by the ground water law.134 The Oklahoma Ground Water Law of 1949, as amended, established a system of prior appropriation applicable to water under the surface of the earth, regardless of the geologic structure in which found.135 Priorities ordinarily are based on first in time, first in right. Those using water prior to the date of the act were given a priority date as of the day upon which they 111 Id. § 61-04-01 etseq. 128N. Dak. Cent. Code Ann. § 61-01-01.1 (Supp. 1969). '"Compare N. Dak. Cent. Code Ann. § 61-04-22 (Supp. 1969) with the same section in the 1960 volume. 130 Volkmann v. Crosby, 120 N.W. (2d) 18, 24 (N. Dak. 1963). 13IOkla Laws 1949, p. 641, Stat. Ann. tit. 82, § 1001 etseq. (1970). 132See Canada v. City ofShawnee, 179 Okla. 53, 64 Pac. (2d) 694 (1937). t33Okla. Stat. Ann. tit. 60, § 60 (Supp. 1969). The original Oklahoma declaration was Terr. Okla. Stats. 1890, § 4162. 134Okla. Laws 1963, ch. 205 § 1. See Okla. Stat. Ann. tit. 60, § 60 (Supp. 1969). 135Okla. Stat. Ann. tit. 82, § 1002 (1970). |
