| OCR Text |
Show ALASKA 95 of acquiring rights, the prestatutory procedure is significant because of the numerous rights which were established under it. Some of the early cases indicated that Alaska might recognize both riparian and appropriation rights,63 but later cases rejected the concept of riparian rights and made it clear that the appropriation doctrine was the exclusive method of acquiring rights.64 The principle prestatutory method for acquiring rights was simply by diverting the water and putting it to use. The Alaska court has ruled that three elements must exist to have established a right by this procedure. First, the appropriator must have an in- tent to apply the water to beneficial use; second, the water must be diverted from the natural channel by a ditch or some other -means; and third, the water must be applied to some useful and beneficial purpose within a reasonable time.65 For a time, Alaska also adopted a procedure for initiating a right by posting notice. However, the Alaska court ruled that the mere posting of notice created no right without the diversion and appli- cation of water to beneficial use, but if this procedure was followed and the water placed to beneficial use with due diligence, the pri- ority of the right related back to the time when the right was initiated.66 To a limited extent, there was a form of riparian rights recog- nized by an early Alaska statute. This statute, which has since been repealed, allowed the locator of any mining claim that included both banks of a stream the right to use the quantity of water needed to work the claim,67 but the act was narrowly construed by the courts.68 Also, while the water code preserved and recognized prior rights, it only purports to protect those rights where the water was actually placed to beneficial use or was about to be placed to beneficial use when the act was passed.69 C. CURRENT PROCEDURE In Alaska today, the right to use water can only be obtained by making application to the commissioner for a permit to appropri- ate.70 This procedure has been exclusive since Alaska's water use act was passed in 1966. In order to assure interdepartmental coopera- tion, the act provides that all applications filed are considered as having been simultaneously filed with the department of fish and game and the department of environmental conservation.71 Notice of the application is given by publication in a newspaper having general circulation in the area where the water is to be ap- ^Ketchikan Co. v. Citizens' Co., 2 Alaska 120 (1903) ; Madigan v. Kaugarok Mining Co., 3 Alaska 63 (1906). M McFarland v. Alaska Perseverance Mining Co., 3 Alaska 308 (1907) ; Van Dyke v. Midnight Sun Mining & Ditch Co., 177 Fed. 85 (9th Clr. 1910). 68McFarland v. Alaska Perseverance Mining Co., 3 Alaska 308 (1907) ; Miocene Ditch Co. v. Campion Mining & Trading Co., 3 Alaska 572 (1908) ; Hoogendorn v. Nelson Gulch Mining Co., 4 Alaska 216 (1910). 86 Hoogendorn v. Nelson Gulch Mining Co., 4 Alaska 216 (1910) ; Miocene Ditch Co. v. Campion Mining & Trading Co., 3 Alaska 572 (1908). OT Alaska sess. Laws 1917, ch. 5, sec. 1; repealed, Alaska sess. Laws 1966, ch. 50, sec. 2. ^Balaoanoff v. Kellogg, 10 Alaska 11, 118 P. 2d 597 (9th Clr. 1941) ; Stinson v. Murray, 8 Alaska 167 (1930). 88 Sec. 46.15.060. 70 Sees. 46.15.030 and .040. i Sec. 46.15.040. |
