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Show 586 NORTH DAKOTA Kansas,54 which upheld the abolition of unused riparian rights. Baeth would thus seem to put at rest any constitutional issues in connection with the appropriation act, and the language is broad enough to include unused riparian rights as well as unused ground water. The opinion does, however, contain the dictum which is quoted in section 2.1 above, and which appears to run counter to the spirit of the appropriation system, and in fact counter to the holding of the court on the constitutional issue.65 The court seemed to say that, as between competing applicants, priority in time of filing should not necessarily govern, but that perhaps an equitable solution would be to give recognition to something like the correlative rights theory (which would apportion ground water among surface owners whose lands are located above the water source).58 This seems contrary to the present statute57 which accords priority to the first applicant to file, and to some extent runs counter to a basic precept of the appropriation system.58 On the other hand, at the stage where applicants are competing for permits, the State engineer in many States has considerable discretion in granting a permit, but more statutory guidelines or criteria are emerging-particularly with re- spect to instream values and environmental impact. In addition to the foregoing discussion, and in brief summary, it should be remembered that the water code recognizes beneficial use as the basis, the measure, and the limit of the right to use water;59 that, although priority in time confers prior right, a system of pref- erences is set up when the uses of water for different purposes con- flict ; and that the order of priority is domestic use, then livestock use, then irrigation and industrial use, and, finally, fish, wildlife, and other outdoor recreational uses.60 Whether this creates a true pref- erence system is not known.81 3.3 Changes, Sales, and Tranfers Appropriations for the purpose of irrigation are appurtenant to specified land "so long as the water can be used beneficially thereon unless such rights to use water have been severed for other bene- ficial uses as provided in section 61-04^-15."62 The latter section pro- vides for assignment only upon approval of the State engineer. 3.4 Loss of Bights North Dakota statutes have long provided that water rights may be forfeited by nonuse for a period of 3 years.63 Prior to 1963, it was felt that this section could validly be applied to appropriation « Baumann v. Smrha, 145 F. Supp. 617 (D. Kan. 1956) aff'd per curiam 352 U.S. 863 (1956). See also Williams v. City of WitcMta, 190 Kan. 317, 374 P. 2d 578 (1962) appeal dismissed 375 U.S. 7 (1963). 88 157 N.W. 2d at 733-34. MO/. Wolkmann v. City of Crosby, 120 N.W. 2d 18 (N.D. 1963). w Sees. 61-04-04, 61-01-02. 88 See Comment. 4 Land & Water L. Rev. 185 (1969). »Sec. 61-01-02 (1971 Supp.). «> Sec. 61-01-01.1 (1971 Supp.). 81 See V. Larson, note 5, p. 9, at 270-74, where the preferences under the earlier statute are discussed. 62 Sec. 61-01-02 (1971 Supp.). «9Sec. 61-14-02. |
