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Show 330 KANSAS 4. Ground Water Ground water is now subject to State administration and control. However, prior to the adoption of the water code in 1945, the Kansas Court had announced that percolating waters belonged to the owner of the soil for use as he saw fit, thus adopting the common law rule of absolute ownership.132 But with respect to underflow of a surface stream, it was held that this source of water did not belong to the overlying landowner. Kather, the rights were governed by the law of watercourses.183 Prior to the enactment of the 1945 water code, there were some earlier legislative attempts to make ground water subject to appro- priation, but none of these efforts were effective in accomplishing this purpose.134 However, the 1945 act dedicated all of the unallocated water to the use of the people of the State, and provides that rights, except for domestic use, can only be acquired by filing an application for a permit with the chief engineer.135 The act preserved and protected all prior right to the extent that the water was placed to beneficial use or which was placed to beneficial use within a reasonable time after the act was passed.136 However, the owner of an existing right does not acquire a vested right to the existing water level. In considering the effect of new applications on exist- ing rights, the act states that impairment is limited to the unreason- able raising or lowering of the static water level.137 Further, the code specifies that the approval of each appropriation of ground water is subject to the express condition that such right must allow for a reasonable raising or lowering of the static water level, and that: * * * in determining such reasonable raising or lowering of the static water level in a particular area, the chief engineer shall consider the economics of diverting or pumping water for the water uses involved; * * * "* As pointed out in section 3.2, supra, the constitutionality of the water code was attacked, but was upheld by the Kansas Supreme Court in 1949.139 While this decision only directly involved surface water, it seems clear that the approval of the Court encompassed a confirmation of the act with respect to both surface water and ground water, and a fairly recent decision specifically upheld the constitutionality of the water code as it related to the use of ground water. While the Kansas Court in this latter case concluded that the act did not require a surface owner to obtain a permit in order to make use of the underlying water, it did conclude such use is subject to an injunction in the event his use impairs rights recog- nized and protected by the act.140 There are special statutory provisions which relate to artesian rights. Any person applying water obtained by an artesian well to 188 Jolting v. Tuttle, 75 Kan. 351, 89 Pac. 699 (1907) ; State, ex rel, Peterson v. State Board of Agriculture, 158 Kan. 603,149 P. 2d 604 (1944). 1S3Emporia v. Soden, 25 Kan. 588 (1881). 184 Hutchins, The Kansas Law of Water Bights, 70 (1957). «* Sec. 82a-702, 82a-705. ^Sec. 82a-701(d). 187 Sec. 82a-711. 188 Sec. 82a-71ila. 189 State, ex rel. Emery v. Enapp, 167 Kan. 546, 207 P. 2d 440 (1949). "» Williams V. City of Wichita, 190 Kan. 317, 374 P. 2d 578 (1962). |