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Show KANSAS 325 The section of the water code relating to the approval of new applications also contains provisions defining the relationship be- tween existing rights and new appropriations. In determining whether a proposed application will impair existing rights, the code defines impairment to include only: * * * The unreasonable raising or lowering of the static level or unreasonable increase or decrease of the streamflow or the unreasonable deterioration of the water quality at the water user's point of diversion beyond a reasonable economic limit.87 However, any owner of a vested right who is injured by a sub- sequent appropriation is entitled to compensation for any damages suffered.88 Also, the owner of a prior right which is impaired by the diversion and. use of water by anyone having a subsequent right is entitled to enjoin such diversion.89 Further, any person with a valid right or permit may enjoin a subsequent diversion of water by a common law claimant without vested rights without first con- demning these common law rights.90 The constitutionality of the 1945 water code was challenged within a few years after it was enacted. In a relatively brief opinion, the Kansas Supreme Court sustained the constitutionality of the act, and noted among other things that this type of legislation was clearly in the public interest.91 B. RIPARIAN RIGHTS Some of the early Kansas decisions discussed the rights of riparian owners in terms of the natural flow theory of riparian rights, but later cases made it clear that the reasonable use rule prevailed in the State.92 Under the reasonable use rule of riparian rights, each pro- prietor is entitled to make a reasonable use of the available water supply which is consistent with the equal rights of other riparian owners. However, certain uses have a preferred status. The owner of a riparian rights is entitled to use as much water as necessary for domestic and stockwatering purposes.93 These uses are considered primary, with all other uses classified as secondary. All riparians are limited to a reasonable use of water for secondary purposes such as irrigation and industrial use. What is "reasonable" is generally considered to be a question of fact to be determined from the size, nature, and characteristics of each individual stream,94 and, as dis- cussed above, all riparian rights are subject to the beneficial use limitation. w Sec. 82a-711. 88 Sec. 82a-716. » Sec. 82a-717a. «o Sec. 82a-716. 81 State, ex rel, Emery v. Knapp, 167 Kan. 546, 207 P. 2d 440 (1949) ; also see Williams v. City of Wichita, 190 Kan. 317, 374 P. 2d 578 (1962) and Cities of Hesston and Sedgwick v. Smrha, 192 Kan. 647, 391 P. 2d 93 (1964). 92 Hutchins, The Kansas Law of Water Bights, 39, 40 (1957) ; State, ex rel, Emery v. Knapp, 167 Kan. 546, 207 P. 2d 440 (1949) ; Weaver v. Beech Aircraft Corp., 180 Kan. 224, 303 P. 2d 159 (1956). » Clark v. Allamon, 71 Kan. 206, 80 Pac. 571 (1905) ; Emporia v. Soden. 25 Kan. 588 (1881) ; Heise v. Shulz, 167 Kan. 34, 204 P. 2d 706 (1949). b* Clark v. Allaman, 71 Kan. 206, 80 Pac. 571 (1905) ; Atchison, TopeTca d Santa Fe Ry. v. Shriver, 101 Kan. 257, 166 Pac. 519 (1917) ; Gano V. Hall, 188 Kan. 491, 363 P. 2d 551 (1961). |