Title: University of Kansas Law Review - Symposium on Water Law
CITATION THUMBNAILS PAGE IMAGE ZOOMABLE
Full Citation
STANDARD VIEW MARC VIEW
Permanent Link: http://ufdc.ufl.edu/WL00003082/00001
 Material Information
Title: University of Kansas Law Review - Symposium on Water Law
Physical Description: Book
Language: English
Publisher: University of Kansas Law Review, Green Hall, Lawrence, Kansas
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: richard Hamann's Collections - University of Kansas Law Review - Symposium on Water Law
General Note: Box 12, Folder 8 ( Collected Materials on Water Law - 1952 -1957 ), Item 10
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: WL00003082
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
Rights Management: All rights reserved by the source institution and holding location.

Full Text






University of


Kansas Law Review

(Member National Conference of Law Reviews)

Volume 5 May, 1957 Number 4


PAGE
The Editors' N otes ................................................................................... vii

Dean Frederick J. Moreau ............................................................ x

SYMPOSIUM ON WATER LAW
Foreword ................................................................ Earl B. Shurtz 491
Water and the Laws of Nature ........................ Fran C. Foley 492
Some Economic Considerations in Water Use Policy
Edgar S.Bagley 499
The Water Problem or Problems in Kansas .... Robert L. Smith 517
Western Water Rights Doctrines and Their Development
in Kansas ..................... .................... Wells A. Hutchins 533
Surface Water Rights in Kansas .................... Daniel R. Hopkins 584
Ground Water Rights in Kansas .................. Robert B. Morton 597
Water Pollution Problem in Kansas ............ Dwight F. Metzler 611
The R e o eiederalG Gernment in State WaterLa
S' -0 O.Martz 626
Problems of Water Law Administration in Kansas
Robert V. Smrha 649
Water Law Procedure in Kansas ...................... Warden L. Noe 663
Bibliography of Recent Legal Periodicals ................................... 674

Published in October, December, March, and May by the University of Kansas Law Review,
Green Hall, Lawrence, Kansas. Subscription prices, $3.50 per volume or $1.25 per copy. Survey
issue and Symposium issues are $2.00. If subscription is to be discontinued at expiration, notice
to that effect should be sent; otherwise it will be renewed as usual. Copyright 1957 by the Kansas
Law Review, Inc.
ENTERED AS SECoND CLASS MATTER AT THE POSTOFFICE AT LAwRENCE, KANSAS.

S111
iii
*I











ARTICLES
Relevancy Unraveled ................................................ M. C. Slough 675


COMMENTS
Gross and Wanton Negligence: A Quarter Century Under the
Kansas Guest Statute .................................................................................. 722


CASE NOTES
CRIMINAL LwA-Evidence--Other Offenses and Character of Accused
(State v. Callahan, Kan. 1956) ................................................................ 738
LABoa RELATIONs-Employees of Private Contractors Doing Government
Work-Union or Organizational Activity (Beverly v. Dallas, Tex.
Civ. App. 1956) ............................................................................................ 740
ToRTs-Invasion of Personal Safety, Comfort, or Privacy
(Waters v. Fleetwood, Ga. 1956) ......................................... 743
WATERS AND WATER COURSEs-Appropriation and Prescription-Nature
and Extent of Right Acquired (Weaver v. Beech Aircraft Corp.,
K an. 1956) .................................................................................................... 746
WORKMEN'S COMPENSATION-What Risks are Incidental to Employment
in General (Governair Corporation v. District Court, Okla. 1956) ...... 750


NISI PRIUS DECISIONS
Statute of Limitations is Tolled by Service on the Secretary of State
Even though Non-Resident Defendant Receives Notice by Regis-
tered Mail After the Statutory Period ...................................................... 753


Cite as
5 KAN. L. REV. 000

iv










The Editors' Notes
The May issue of the Review is sig-
nificant in several ways. First, it marks
the end of the first five years of our
history. Secondly, it records the retire-
ment of Dean Frederick J. Moreau from
the deanship and ushers in the new
administration of Professor M. C.
Slough, Dean-elect. Thirdly, the May
issue is also the largest single issue of
the Review published to date; and the
Symposium on Water Law, the third
symposium thus far, is the most ambi-
tious undertaken. Lastly, the May num-
ber also includes the five year cumula-
tive index.
The first five years of the Review
have seen the publication change from
a three issue per volume effort of 387
pages to a quarterly publishing over
600 pages annually. But quantity alone
does not make a law journal. The Re-
view has consistently tried to present
well-written articles by leaders in the
various fields. The first five years have
witnessed stabilization of format and
style, and considerable growth of the
Review. The next five will bear the
reward.

The importance of water supply and
water control has been accentuated in
the nation and especially in the Mid-
west and Kansas by the recent pro-
longed drouth. Even with average rain-
falls, supply and control problems are
of increasing importance as more de-
mands are made for water for indus-
trial, agricultural, domestic, and recre-
ational uses. Realizing the timeliness of
water law the Editors decided to print,
in symposium form, the papers deliv-
ered at the Water Law Conference held


on the University campus on March 20,
21, 1957
Water and the Laws of Nature by
DR. FRANK C. FOLEY leads off the
Symposium. The author presents some
basic concepts and misconceptions con-
cerning the characteristics of water.
Unless man recognizes natural physical
laws, water legislation may prove
meaningless, the author concludes.
Since 1954, Dr. Foley has been Director
of the State Geological Survey of Kan-
sas and Professor of Geology at Kansas
University. From 1951-1954, Dr. Foley
was the head of the Division of Ground
Water, Illinois Geological Survey, and
Research Professor of Geology at the
University of Illinois.
Another important consideration in
water law legislation is economics. DR.
EDGAR S. BAGLEY focuses the problem
in Some Economic Considerations in
Water Use Policies. Dr. Bagley is Pro-
fessor of Economics at Kansas State
College, Manhattan. His specialty is the
relationship of law and economics and
at the present he is engaged in the
study of the economic implications of
water rights law.
The third article, The Water Prob-
lem or Problems in Kansas by MR. RoB-
ERT L. SMITH, demonstrates that the
solution to water difficulties lies in dis-
covering just what the basic problem is,
and in educating the citizens to work
for its solution. Mr. Smith is the Execu-
tive Secretary of the Kansas Water Re-
sources Board. From 1952-1955, he
served as Executive Director of the
Iowa Resources Council, and from
1948-1952, he was Assistant Professor of
Engineering at Kansas University.
One of the highlights of the Sym-
posium is the article by MR. WELLS A.

vii


.










HUTCHINs entitled Western Water
Rights Doctrine and Their Develop-
ment in Kansas. In this well docu-
mented paper Mr. Hutchins traces the
origin and growth of water law in the
West. At the present time, Mr. Hutch-
ins is with the Farm Economic Re-
search Division, Agricultural Research
Service, United States Department of
Agriculture, Berkeley, California. Mr.
Hutchins is one of the leading authori-
ties in the nation on water law. Cur-
rently, he is revising and enlarging his
classic work, SELECTED PROBLEMS IN
THE LAW OF WATER RIGHTS IN THE
WEST.
With the general principles and con-
siderations before the reader, the Sym-
posium now turns to particular areas
of water law for more detailed examina-
tion. MR. DANIEL R. HOPKINS examines
the law of Surface Water Rights in
Kansas. He develops his topic from the
historical, legislative, and interstate as-
pects. Mr. Hopkins is a practicing at-
torney in Garden City, Kansas. -
From surface waters we next investi-
gate Ground Water Rights in Kansas.
MR. ROBERT B. MORTON discusses
ground water rights under the common
law and present water law statutes. Mr.
Morton is practicing in Wichita and is
special counsel for the City of Wichita.
PROFESSOR DWIGHT F. METZLER in
the Water Pollution Problem in Kansas
describes the sanitary considerations in-
volved in water regulations. In addition
to being the Chief Engineer of the Kan-
sas State Board of Health, Mr. Metzler
is also Associate Professor of Civil
Engineering at Kansas University.
What is The Role of the Federal Gov-
ernment in State Water Law? Accord-
ing to PROFESSOR CLYDE O. MARTZ, the


federal government is rapidly enlarging
its control in this area. While not a
state-rights advocate, he suggests that
the national welfare will benefit from
a reconsideration of basic federal water
projects and state needs. Professor
Martz is Professor of Law at Colorado
University and is the author of a case-
book on Natural Resources (1951). He
is also executive secretary of the Rocky
Mountain Mineral Law Foundation.
All laws need administration. MR.
ROBERT V. SMRHA demonstrates this
thesis in his article Problems of Water
Law Administration in Kansas. Mr.
Smrha is the Chief Engineer, Division
of Water Resources, State Board of
Agriculture. He is the past president
of the Association of Western State
Engineers.
Water Law Procedure in Kansas dis-
cusses the manner of securing water
rights under the present water act. The
author, MR. WARDEN L. NOE, is an at-
torney for the State Board of Agricul-
ture.

PROFESSOR M. C. SLOUGH, the Dean-
elect of the Law School, presents his
third installment of Relevancy Un-
raveled. Part I appears at 5 KAN. L.
REV. 1; Part II at 5 KAN. L. REV. 404.
The final installment will appear in the
October issue of volume six next fall.
*
The student author of the comment
entitled Gross and Wanton Negligence:
A Quarter Century Under the Kansas
Guest Statute reviews the history of
the statute and the cases decided since
its passage in 1931.
The admission of evidence of other
crimes in criminal cases is of recurring
importance. The author of the first case

riii


L









note discusses the problem as presented
by the Kansas case of State v. Callahan
in light of the rules of exclusion and
admission.
Do government workers have the
right to organize? Yes, answers the sec-
ond case note but there are implications
in this area of labor relations.
The right of privacy is often called
the newest tort. Our third case note is
based on a recent case involving this
new tort.
Of related interest to the Symposium
on Water Law is the note discussing
the recent Kansas case of Weaver v.
Beech Aircraft Corp. The student au-
thor presents the implications of the
silence of the Kansas Supreme Court in
that case.
Most practitioners are involved at
one time or another in a workmen's
compensation case. The last case note
describes the old problem of the terms
"arising out of" and "in the course of"
employment in reference to a recent
case.

Effective Use of the Review
To facilitate use of preserved volumes
of the Kansas Law Review as a source
for research, we wish to remind our
readers of the following channels of
access: The materials we have pub-
lished are 1) cited in Shepard's Kansas


Citator under the entries for those
Kansas cases and statutes to which our
contributors have made references; 2)
classified and digested within the West
keynumber classification in the Kansas
Digest; 3) classified by subject, indexed
by author, and referred to in its table
of cases by the Index to Legal Periodi-
cals; furthermore, each issue of the
Annual Survey of Kansas Law has a
table of cases and statutes cited in the
survey.

Of Note
Readers of this periodical may be
interested to know that the May, 1957,
issue of the Kansas University Alumni
Magazine will feature an illustrated
story describing the first five years of
the Review's history.

Next Volume
The October, 1957, number will
feature an article by Professor Dan
Hopson, Jr., of the Law School, de-
scribing current labor injunctions in
Kansas. Professor Slough will conclude
his series of articles on relevancy. The
entire series will be available in reprint
form at that time. The Annual Survey
of Kansas Law will again be presented
in the December issue. The May issue
is tentatively to be devoted to a sym-
posium issue on Estate Planning.













ix













DEAN FREDERICK JAMES MOREAU

After twenty years as Dean, Frederick J. Moreau is retiring to return to his
first love-teaching. Dean Moreau came to the University of Kansas in 1929.
Previously he had practiced law in Madison, Wisconsin for three years and taught
at the University of Idaho for two. He holds the Ph.B. 1922, LL.B. 1924 from
the University of Wisconsin. He received his LL.M. in 1937 from Columbia
University.

In 1937 Dean Moreau assumed the deanship at the University of Kansas Law
School. Under Dean Moreau's leadership the Law School library became one of
the most outstanding in the mid-west. The University of Kansas Law Review was
inaugurated. The School of Law sent teams to the National Moot Court com-
petition and won second place nationally in the first year of competition. Dean
Moreau pioneered for the seven year law program which recently went into
effect in the state. The School of Law attained a remarkable record in the number
of graduates who attempted and passed state bar examinations across the nation.

Dean Moreau was one of the members of the committee that drafted the
Corporation Code for Kansas. He aided in the establishment of the Journal of the
Bar Association of Kansas, and his writing may be found throughout The Journal.

The students and lawyers of Kansas will remember the Dean's classes. They
will long recall his love of learning and scholarship that he imparted to them over
the years. The friendly counsel and encouragement that he gave so freely outside
of class will be remembered whenever Kansas University law students gather. The
state, the profession, and the school is greatly in his debt. That fact of his resigna-
tion as Dean is balanced by the fact that as professor he will be with us for some
years to come. We hope to enjoy his counsel and teaching for many years to come.

The portrait on the opposite page now hangs in the Law Library. It was
presented to Dean Moreau on May 2, 1957, by the present student body of the Law
School.





















































FREDERICK J. MOREAU










Kansas Law Review



Symposium on Water Law



FOREWORD

The School of Law of the University of Kansas, in cooperation with
the University, presented a Water Law Conference on the University
campus March 20 and 21, 1957. Interest ran high, attendance was
excellent and the speakers performed brilliantly. Since the preparation
and presentation of the conference papers, Kansas has enacted extensive
amendments in the field of Kansas water law. These changes, however,
in no way impinge upon the value and significance of those papers.
Chapter by chapter, the conference speakers told a fascinating story
based upon the theme of Man's attempt to understand and control his
relation to nature and his duties to himself. The story's cast of char-
acters ranged from the engineer to the lawyer, from the scientist to the
philosopher. The struggles of those characters with the monsters of
flood and pollution, the demons of drouth and waste, and the devils
of ignorance and injustice comprised the tale. Each episode pointed up
the moral that salvation from the evils of the inadequate use and con-
trol of water is possible only through interdiscliplinary cooperation
directed to wise, careful, and continued planning and to deliberate,
sane, and effective action.
We are happy that in the following pages we can share with the
readers of the Kansas Law Review the entire story that was told at our
conference.
EARL B. SHURTZ,
Assistant Professor of Law and
Water Law Conference Director.








KANSAS LAW REVIEW


WATER AND THE LAWS OF NATURE
Frank C. Foley*


I. PRELIMINARY CONSIDERATIONS
As a prelude to a discussion of water law, water itself and the laws
of nature that it obeys in its occurrence and movement should be
examined. Man's physical and legal control of water must be com-
patible with nature's laws.
Surface water can be seen quite readily and it is easy to measure its
quantity and rate of flow. We can construct dams and treat watersheds
to control, store, and divert it. We do not have enough of it sometimes,
but when the supply is diminishing we know it immediately. The
fundamental law that water runs down hill is obvious and is well
known to all.
When water disappears below the surface of the ground it is out of
sight, it is harder to measure, we have to do a great deal of work even
to find where it is in many cases, and it takes on a mysterious quality to
many people. Actually, there is nothing mysterious about it, but any-
thing that is not readily seen is apt to be mysterious. A judge in an
American court, many years ago, in rendering a decision in a water
rights case stated, "Percolating water moves in a mysterious manner
in courses unknown and unknowable." Several legal decisions have
been reached in the past on such lack of understanding of water. That
is not surprising, because a great deal of our knowledge of ground
water and its behavior has developed in this century.

II. WATER THEORIES
Let us look at some of the history of man's knowledge of water and
his conception of ground water particularly because it is more difficult
to understand than water on the land surface. Ground water has been
known since man became a rational being. The earliest chapters of
the Bible speak of water. In fact, the twenty-sixth chapter of Genesis
reads like a water supply paper, for the children of Israel, wandering
in the desert, had real problems with water and Moses did some fine
water geology in some places. The Israelites had problems of water law
*Professor of Geology, Univ. of Kansas, and Director of the State Geological Survey of
Kansas. B.A. 1929, Univ. of Toronto; Ph.D. 1938, Princteton Univ.


j


[Vol. 5








SYMPOSIUM ON WATER LAW


in those days, for it is said that they dug wells and that they and their
neighbors "strove" for them. While the children of Israel were in
Egypt, the Philistines filled up the wells, and when the Israelites re-
turned, they had to redig the old wells and dig new ones. At least one
of those old wells is still there.
Ancient Theories: The Greek and Roman philosophers believed
that there had to be some mysterious source for ground water espe-
cially because precipitation, they believed, simply was not enough to
supply all the water that flowed in streams and that came from springs
and wells. Seneca said, "Rainfall cannot possibly be the source of
springs because it penetrates only a few feet into the earth, whereas
springs are fed from deep down. As a diligent digger among my vines,
I can confirm my observation that no rain is ever so heavy as to wet the
ground at a depth more than 10 feet." He observed, but he did not ob-
serve closely enough. The theories of the classical philosophers were
prevalent in the Middle Ages. One of the first men to propose other
ideas was Bernard Palissy, a Frenchman who in 1580 published a
work on water. Palissy, born in poverty, had not much formal educa-
tion and wrote in French rather than in the classical Latin. He was a
keen observer and based his conclusions on his own observations and
experiments rather than on the opinions of the ancient philosophers.
He concluded that there was enough rainfall to supply both surface
water and ground water, and that water did soak far into the ground.
Until that time and even for some time after Palissy, attempts to ex-
plain ground water were based on the ancient theory, and some really
fantastic ideas were produced about the source of ground water.
Most of the ancient theories held, correctly, that water came from
the ocean. The ocean never was full, although all rivers flowed into it;
therefore, water had to move to the land somehow. Some of these ideas
were that the water returned somehow underground through holes in
the bottom of the ocean. Ocean water is salty and springs and wells are
fresh; so there had to be some mysterious de-salting process. Somehow
the water was elevated by earth pressure up into the mountains and
highlands, where it appeared as springs. Aristotle's idea was that the air
was condensed to water by the coldness of the atmosphere and falls as
rain. Also, some air got into the ground where it met coldness and
where again it was changed to water. Beginning with Palissy in 1580,
ideas began to change. Several others a little later-Perrault, Mariotti,


1957]








494 KANSAS LAW REVIEW [Vol. 5

and Halley, the discoverer of Halley's comet, abandoned the theories
of the past and started actual experimentation. So in the 16th and 17th
centuries, the science of ground-water hydrology was born. Hagen in
1839, Poiseuille about 1840, Darcy in 1856, Hazen in 1892, and Schlich-
ter in 1899 developed or recognized the laws that govern the occurrence
and movements of ground water. With this background the 20th cen-
tury has seen the development of ground-water hydrology to a quanti-
tative as well as qualitative science.
Current Theories: Some of the ancient ideas have not all dis-
appeared yet. There are still many who thoroughly believe in water
witching. Water witching is one of the holdovers from medieval witch-
craft and is still here very definitely. Another erroneous idea that is
quite widespread is that there are vast underground rivers and lakes
and if a well happens to hit one of them, there is an inexhaustible
supply. Wherever we have worked on water geology, the good, clear,
cold water that comes from underground is believed by some people
to have come from somewhere else. In the Milwaukee area in Wiscon-
sin, it is thought by some people to come from Lake Superior in great
unseen underground rivers, the geologic impossibility notwithstanding.
The point was missed that Lake Superior stands about twenty feet
above the level of Lake Michigan and that originally the water levels
in the wells near Milwaukee stood 110 feet above the level of Lake
Michigan. It is a fundamental law of nature that water will not run
uphill even though though it is underground. In central Illinois, it is
said that the rather rare good ground-water supplies there must come
from Lake Michigan. Underground rivers are believed by some to flow
across Illinois somewhere, somehow, and empty into the Gulf of
Mexico, or into the lower Mississippi. On Long Island there is the
idea that ground water on Long Island comes from the mountains in
New Hampshire or Vermont. In California the idea of some people is
that a good deal of the good ground water found in valleys near the
coast has come beneath the coastal ranges from the High Sierra in
underground rivers. In Kansas we find a strong belief that big under-
ground rivers flow down from the Rockies. This is an attempt to ex-
plain the large quantities of water which do occur underground in
some places. Apparently it is difficult to understand how so much
water can be there, how there can be such large yields from wells unless
there is some kind of stream or lake underground. Such cross-country








SYMPOSIUM ON WATER LAW


streams do not exist though there are open channels underground in
some places where some of the soluble rocks, particularly the lime-
stones, have been dissolved and cavern systems have developed. Such
large cavern systems as Carlsbad Caverns and Mammoth Cave are
rare. There are some places in Kansas where we do find fissures during
well drilling, but there are no great underground rivers flowing across
country.
Another rather widespread misconception is that water occurs in
so-called veins. The occurrence of ground water is controlled by geo-
logic conditions and at certain places and in certain directions more
water can be gotten than in others, but that is not the concept of a
vein. Most of the water-witchers are looking for veins. Some witchers
look for great domes of water which well up from some mysterious
place, nobody knows quite where. Most of the water that might well
up from great depths in Kansas is strong brine. There just is not a great
stock of fresh water at great depths.
There was some publicity in Kansas not long ago about a great lake
beneath southeastern Kansas which provided the good, fresh water for
the area around Pittsburg. There is no such lake. Because the pore
spaces in the rock formations in the area are full of water, there is a
tremendous amount of water in storage. The great quantity of water
suggests to some persons not familiar with geology that an actual great
opening full of water is there in the form of a buried lake, and all that
needs to be done is to drill into it to make a good well.

III. THREE WATER CATEGORIES
Water on the earth can be divided into three main categories, only
one of which is significant in water supply. Juvenile water is original
water that occurs deep within the earth and in some places moves
outward from the regions below the earth's crust. It is insignificant in
water supply and can rarely be identified. Connate water is water that
was trapped with sediments at the time of their deposition. It is also
difficult to identify and is likely to be highly mineralized. Meteoric
water is that which falls on the earth as precipitation and is the source
of almost all usable water supplies, both surface and underground.
As water from the surface moves downward by percolation, it
normally passes through an unsaturated zone where part of it, in some
cases all or nearly all of it, is retained. Soil water is part of that in the


1957]








496 KANSAS LAW REVIEw [Vol. 5

unsaturated zone. Part of the downward seeping water reaches the
zone of saturation where all open pores in the earth materials are full
of water. This water in the zone of saturation is ground water and can
be drawn out in wells or flow naturally in springs if the openings in the
earth materials are interconnected and large enough to permit water to
move through them. The upper limit of the zone of saturation is the
water table. Many formations, under proper conditions, contain ground
water under pressure so that, when tapped by a well, it rises above the
containing formation. Such confined water is artesian. All flowing
wells are artesian, but a well does not need to flow at the surface to be
artesian.

IV. THE HYDROLOGIC CYCLE
The hydrologic cycle is an important concept in any discussion or
any consideration of water. An understanding of the continuous circula-
tion of the water on and beneath the surface of the earth and of the
interrelation of its surface and subsurface occurrences is important to
man's adequate control of water. Briefly, water evaporates from the
oceans, from lakes, from ponds, and from the land surface itself and
passes into the air as vapor. That vapor, under the proper meteorologic
conditions, condenses and falls as precipitation in one form or another.
Most of the precipitation runs off in some parts of the country, but in
other parts of the country most that falls evaporates directly back into
the air. Some of it soaks into the ground. Some of that that soaks into
the ground is returned to the air by plants and by direct evaporation
from the soil. In most parts of the country, a relatively small part of it
manages to get down through all these hazards to the zone of satura-
tion and becomes part of the ground water. On this small portion of
the precipitation that reaches the saturated zone we must depend for
the recharge of our ground water.

V. GROUND WATER
Ground water moves according to the laws of nature as does sur-
face water with gravity as the controlling force. It moves down slope
toward points of discharge. The natural discharge is, in most parts of
the country, likely to be streams where the water table intersects the
stream valley. The water moves into the streams, sometimes as actual
springs, but more often as general seepage. It is this return of ground








SYMPOSIUM ON WATER LAW


water that keeps the streams flowing in times of drouth. If the ground
water itself has been depleted and has not been recharged because of
lack of precipitation such as has been the case during the drouth, the
level of the ground water gradually goes down and the rate of return
of ground water to the streams diminishes till finally the streams stop
flowing. Many streams in Kansas have stopped flowing, apparently for
the first time in the settled history of the state. The ground water that
feeds them has been depleted by slow drainage into the streams. This
points up the fact that one cannot separate ground water and surface
water. What is surface water at one time is ground water the next.
What is ground water today becomes surface water tomorrow. Any
concept dealing with all water must correlate ground water and surface
water.
Geologists and hydrologists do not yet know all about the occur-
rence and movement of ground water. They cannot see it better than
anyone else, but there are methods of finding out. There are adequate
techniques, given time and trained people, which will give the an-
swers even though the problem is difficult in many places.
Recharge of ground water from precipitation varies tremendously.
In western Kansas, apparently an average of about a quarter of an
inch annually of the rainfall actually gets through to recharge the
ground water. We doubt that there has been much, if any, recharge
to the ground water in the High Plains area during the last five years.
In periods of above-normal precipitation there will be more than the
average recharge.
When withdrawal of ground water by wells begins, the water level
goes down. Water cannot be pumped from a well without lowering
the water level. One hears of wells in which there was no draw down.
The draw down may be small and difficult to measure accurately, but
there is a draw down.
Recovery: The occurrence of ground water is very dependent on
the geology of the area. Ground water can be recovered only from
those formations which are of such character that they will yield water.
Their ability to yield water or to allow water to move through them
is called permeability, which depends on the formation itself and the
size of the openings that occur in the rock. Kansas has many geologic
formations with high permeability and many others with low per-
meability where ground water in large or even adequate quantities
cannot be found.




_ _ _ _ _j_


1957]








498 KANSAS LAW REVIEw [Vol. 5

Sand and gravel deposits generally have higher permeability than
silt, clay, or shale. The fine-grained materials with low permeability
may actually contain more pore space and hence more water per unit
volume than the coarser-grained materials, but the openings are so
small that water cannot move through them readily; therefore, wells
drilled into the fine-grained materials yield little or no water.
The well known Equus beds in McPherson, Harvey, Reno, and
Sedgwick Counties is a good example of highly permeable material
that can store and yield large quantities of water. Much of western
Kansas is underlain by deposits of sand and gravel of the Ogallala
formation and younger Pleistocene deposits. These materials are the
source of the splendid ground-water supplies that are being developed
in western Kansas.
Eastern Kansas is not blessed with much permeable material, and
as a result it is difficult to find large supplies of ground water except
in some of the major stream valleys such as the Kansas River where
sand and gravel have been deposited by the streams. The scarcity of
large permeable formations in eastern Kansas has necessitated the
development of surface storage reservoirs for most municipalities in
eastern Kansas.

VI. CONCLUSION
It is obvious that all water is interrelated though it occurs in very
different situations. It all obeys the laws of nature, and those laws are
now well known. Man's laws governing water can be effective only
as they recognize the laws of nature. Certainly there is no longer any
excuse for such statements as "Percolating water moves in a mysterious
manner in courses unknown and unknowable."









1957] SYMPOSIUM ON WATER LAW 499

SOME ECONOMIC CONSIDERATIONS IN

WATER USE POLICYt

E. S. Bagley*


I. INTRODUCTION
There was nothing of economic value in the Garden of Eden.
Economic value is a phenomenon of scarcity. If water has economic
significance, it is because nature has not supplied it when, where, and
in the quantities or forms that we want it.
For the nation as a whole, it is estimated that some 265 million
acre-feet of water are being withdrawn annually from ground and
surface sources for all purposes at an average delivered value of around
$11 per acre-foot-for a total water bill of $3 billion.1 Estimates of the
President's Materials Policy Comission indicate that by 1975 annual use
will be double what it was in 1950.2 Some $80 to $100 billion will prob-
ably be invested in new water development facilities during this period.8
California alone is presently considering a gigantic scheme to harness
and re-locate some 14 million acre-feet of water by dams, some 240 of
them, and conduits estimated to cost in excess of $11 billion.4
The Kansas Water Resources Fact-Finding and Research Com-
mittee published an estimate in its 1955 report that about 2,100,000 acre-
feet, less than 1 per cent of the national total, were being withdrawn
annually in Kansas in 1953.5 By 1975 withdrawals will have risen to
about 4/2 million acre-feet-an expansion of 24 times in less than
twenty-five years.6 Where is this water to come from?
In the same report, some 12 million acre-feet were estimated to
flow out of the state each year on the average.7 A large share of this
t Contribution No. 138, Department of Agricultural Economics, Kansas Agricultural Ex-
periment Station.
Professor of Economics, Department of Economics and Sociology, Kansas State College,
Manhattan. B.A. 1935, M.A. 1936, U.C.L.A.; Ph.D. 1950, State Univ. of Iowa.
1Derived from projections of the estimates in the 1 PRESIDENT'S MATERIALS POLICY COM-
MISSION, RESOURCES FOR FREEDOM 50 (1952); 5 Id. 83.
SId. 50.
'Frank, The Story of Water as the Story of Man, WATER, YEARBOOK OF AGRICULTURE 7
(U.S. Dept. of Agriculture 1955).
'Allen, The California Water Plan: Financing the Plan, J.AM. WATER WORKS ASSN. 121
(Feb. 1957). See also: DEPT. OF WATER RESOURCES, BULLETIN No. 3 (Sacramento 1957).
'KAN. WATER RESOURCES FACT-FINDING & RESEARCH COMMITTEE, WATER IN KANSAS 43
(1955). Hereinatfter cited as WATER IN KANSAS.
OId. 83.
'Id. 24.



_____________________j


1









500 KANSAS LAW REVIEw [Vol. 5

will doubtless have to continue to leave the state to the south and east
because of interstate compacts yet to be negotiated and for other
reasons. Even if average outflow is not reduced, increased use for non-
consumptive purposes is possible. Suppose 5 million acre-feet annually
can be developed through storage and other projects; this will more
than provide for the anticipated growth during the next twenty-five
years.
How much can Kansas afford to invest in water resource develop-
ment? What is an annual supply of 5 million acre-feet worth? The
Feather River project, one unit in the California plan previously re-
ferred to, will move 4 million acre-feet annually, mostly to central and
southern California and cost $1.6 billion.8 Capitalized at five per cent,
this water must be worth at least $20 per acre-foot. If Kansas water is
worth as much, 5 million annual acre-feet justify a $2 billion invest-
ment. Estimates on how much can be developed and how much it
would actually cost will have to await the completion of a water plan
for the state,9 but if the preceding estimates are at all realistic, the
prize is rich.
The economic aspects of water are not all on the credit side of the
ledger, as Kansans are also well aware-losses inflicted by floods in
Kansas in 1951 alone were calculated at $767 million, and averaged
about $35 million annually over a period of twenty-eight years from
1926 to 1953.10

II. ECONOMICs OF WATER V. ECONOMICS OF WATER LAW
We will be concerned in this article not so much with the economics
of water as such, as with the economics of water law.
Suppose answers are forthcoming to questions about whether it
pays to undertake a certain project-of what relevance is this in framing
water laws? It can be argued that economic data on water plans and
projects are not needed to draft a water law. Certainly it would be a
mistake to codify current market values-to make them the measure
of the legal right to water from this time forward. Values will not be the
same tomorrow as they are today. Nor is it an ideal arrangement to
SMorris, The California Water Plan: Summary, J.AM. WATER WoRKS AssN. 143 (Feb.
1957).
S'This is one of the Functions of the Kansas Water Resources Board created by the 1955
Legislature. See the preliminary report: DEVELOPING A STATE WATER PLAN (Bulletin No. 1
1956).
WATER IN KANsas 8.








1957] SYMPOSIUM ON WATER LAW 501

adopt a vague set of legal institutions regarding water which leaves the
allocation of it largely to judicial processes. Neither the legislature, nor
the courts, in my judgment, are very efficient mechanisms for economic
decision-making. Efficiency by decree is not a promising approach.
What is needed is a statutory framework that will suit economic con-
ditions of both the present and the future, within which development
of water resources is fostered and water uses are responsive to the ever-
changing technologies and demands for water.
To accomplish the task of devising a legal framework conducive
to efficiency, the economic effects of various legal rules for using re-
sources must be understood. One important aspect of the crucial
ideological struggle in the world today is a difference of opinion
about how to attain maximum economic efficiency. It is far from
certain that our knowledge of human society, in its present state of
development, can resolve these economic issues, although Americans
would doubtless reject the totalitarian approach on non-economic
grounds alone. The task of evolving institutional arrangements for
efficient utilization of water is but one facet of this larger problem. And
the economist is not in a much better position to assist in it than in the
larger one. Economics is about people. Efficiency is people doing things
in certain ways with scarce resources; promoting it is largely a matter
of providing knowledge and devising arrangements which will moti-
vate and facilitate people to put forth their best individual and coopera-
tive efforts in using economic goods. Much is yet to be learned of the
controlling factors in human behavior.
My presentation will be concerned with two aspects of economics
and law: (1) economic reasons for public control of water resources
utilization, and (2) economic implications of the several major water
rights doctrines. Economic considerations in deciding which, when,
and by which agency or level of government, specific public projects
should be undertaken will not be treated.1

III. ECONOMIC ASPECTS OF THE PUBLIC INTEREST IN WATER RESOURCES
Ideally, in a free society it might be thought that the chief function
of property law is to define and protect individual property rights,
leaving development and use to private, voluntary market decisions.
n In the jungle of cost-benefit analysis one encounters such awesome and elusive creatures
as secondary (alias indirect) benefits and costs, extra-market (alias intangible) values and costs,
associated costs, basin accounts, etc., which we did not come armed to hunt at this time.




_______________^______ '"''








502 KANSAS LAW REVIEW [Vol. 5

This ideal is seldom realized, however, with public participation and
control being necessary in varying degrees in the social interest. This
has been particularly true of natural resources and probably more of
water than any other. From ancient times water resources have been
cloaked with a public interest and individual rights to use of water
closely circumscribed.
That water is a necessity is doubtless an important reason for the
public aura surrounding its use, but in this respect it is not greatly
different from land, which controls access to food supply. Additional
factors account for the unique public interest in water: (1) Water is
transient, circulating eternally through the water cycle, in obeyance to
atmospheric and gravitational laws; (2) Many of the traditional uses
of water, such as washing, transportation, and power, are noncon-
sumptive, permitting many uses of the same water at different times
and places; (3) Water resources, even when used consumptively, are
often used in common, shared in a sort of "joint tenancy." The fact
that rain which fell on Montana some time ago will be helping to wash
Kansas City's untreated sewage on down the river is of great economic
as well as legal significance. Streams form a common supply for non-
sumptive users along their routes, as does the village well for all the
the population therein. Interdependence in use is probably more char-
acteristic of water than of any other natural resource. Not only are
water uses intertwined, but water use affects land, and vice versa.
Quite apart from considerations of fairness and justice, there are
valid economic reasons for public intervention in the exercise of in-
dividual property rights in water. Market values are not perfect re-
flections of social economic values, and the market mechanism is often
defective in calling forth certain economically desirable practices in
water resources utilization.
Examples of Public Control Being an Economic Benefit
1. Unaccounted Social Costs.-Economic burdens are imposed by
a nonconsumptive water user on subsequent users if the first use pol-
lutes the water. These are direct, measurable costs, but they are not
costs that will be charged by the market to the polluter. Even if pol-
luted water is not used again, it may become a public nuisance. Diver-
sion, delay, and other interruption of the natural flow may also lay
economic burdens on subsequent users. The riparian doctrine fully
recognizes this fact of social costs in water use, and is well adapted,








SYMPOSIUM ON WATER LAW


in many respects, to a society in which nonconsumptive uses of surface
water predominate. Shifts in the proportion of the water which is
consumptively used also affect others drawing from the common source
of supply.
2. Social Benefits.-Many water enterprises are collective in char-
acter in the sense that their benefits are widely dispersed in space and
time and among many persons and cannot be subjected to a market
charge. Some of these benefits, as, for example, recreation and na-
tional defense, are often referred to as "extra market" benefits and are
difficult even to impute a market value to; others have market value
equivalents, not always easily ascertained.
Often the benefits of collective enterprises are so diffused that fi-
nancing by general taxation seems to be the most equitable and feasible
arrangement. Where benefits can be identified and measured with
reasonable accuracy, benefit assessments may be equitably made in lieu
of financing by general taxation. The semi-public district is another
collective technique with a long and distinguished record, especially in
drainage and irrigation enterprises. It has recently been applied to soil
conservation and watershed management.12
It is to be noted that the state government in Kansas is prohibited
from undertaking public works except highways.'x
3. Need for Coordinated Efforts.-Levees, erosion control projects,
and many other water projects require the cooperation and coordinated
efforts of many people. It is often difficult, if not impossible, to secure
the full participation by all concerned through voluntary market
processes. Collective decisions with legal sanctions and compulsion may
be required. For example, a levee on the river side of a single land-
owner's property will not protect him from flood damage, although
his participation in a levee program is essential to its success. A levee,
like a chain, is no stronger than its weakest link.
4. Imperfect Competition.-The market economy depends on effec-
tive competition to provide incentives, positive and negative, for effi-
ciency, progress, and fair treatment of the consumer. The physical
characteristics of water supply frequently preclude effective competi-
tion. Or efficient conduct of the enterprise may dictate monopolistic
organization to eliminate wasteful duplication of facilities. This is true

"Smith, Districts Affecting Water Use and Control, 41 IOWA L. REV. 181 (1956).
"KAN. CONST. Art. XI 9 (1859).


I I


1957]








504 KANSAS LAW REVIEW [Vol. 5

of municipal water supply companies, which, in addition, even if
privately owned, must use public property for rights of way. Public
ownership or regulation to safeguard the consumer against abuse of
monopoly power is generally accepted in these "public utility" cases.
5. Size of Undertaking.-Often water development projects are on
such a vast scale that private industry cannot or is not willing to com-
mand the necessary capital funds. Initiation of such enterprises is de-
pendent on government financing, either fully or on a participating
basis. Implementation of the proposed California water plan, a $10
billion to $12 billion project at current prices, would be an almost in-
superable financial task for private initiative, not to mention the prob-
ably more imposing non-financial obstacles to be overcome.
6. Conservation.-It is generally believed that distant future returns
are undervalued in the marketplace. This is aggravated, of course, in
the case of fugitive resources like fisheries and petroleum by unre-
strained exercise of the rule of capture. Extraction of solid minerals,
lumbering of natural forests, and possibly even the cultivation of the
soil itself are also often thought to be short-sighted and exploitative. To
some extent, i.e., petroleum, this situation is the result of fragmenta-
tion of ownership. Single ownership of a source of supply, or unitizedd"
development as practiced in the petroleum industry, tends to reduce
depletion. Similar arrangements for water resources, particularly
ground water, may be effected through the organization of associations
of water users. This device has some relevance for western Kansas con-
ditions and is already being tried in Texas.14
The correct conservation policy for nonrenewable resources which
are unavoidably depleted by use, is not obvious, but public participation
in decisions regarding the rate of exploitation may yield long-run
economic benefits.
7. Consumptive and Nonconsumptive Uses.-In appraising the total
social benefits of various uses of water, the fact that some uses are non-
consumptive and noncompetitive is of particular and unique signifi-
cance. The sum of the net returns from several nonconsumptive uses
of the same water may greatly exceed that of a single consumptive use
which would preclude them. It is economically desirable for legal in-
stitutions relating to water rights to take account of this fact. The
"KAN. WATEr RESOURCES BD., REPORT ON THE LAws OP KANSAS PERTAINING TO THE
BENEFICIAL USE OP WATER (Bulletin No. 3 1956) contains a summary and analysis of the
Texas law.








SYMPOSIUM ON WATER LAW


existence of a superior legal right for a consumptive use may still not
constitute a barrier to economic efficiency, however, if water rights can
be sold, because the higher economic values will ordinarily prevail in
the marketplace.
Water resources law thus has a heavier responsibility than mere
definition and protection of private property rights in water. Never-
theless, private property rights in water are universal, and have tradi-
tionally been associated with land ownership. Private enterprise is still
predominant in industrial and irrigation uses of water, which account
for most of the water consumption in the United States today."
Vested rights must be honored in any proposals for change.

IV. EcoNOMIC IMPLICATIONS OF WATER RIGHTS LAW
Several different concepts of property rights to the use of water have
been recognized in common and statute law.
1. The riparian principle is a common-law doctrine under which
water rights are associated with riparian lands. The strict or "natural
flow" interpretation of this doctrine provided that riparian landowners
were entitled to maintenance of the natural flow of the stream un-
diminished in quantity or quality, subject to "natural" uses-domestic
uses-by other riparians. Reasonable use interpretations modifying the
strict rule permit consumptive use on riparian lands, with all riparians
having co-equal rights.
2. The absolute ownership principle, also a common law doctrine,
attaches ground water rights to the overlying land. Overlying land-
owners may withdraw as much water as they wish for use anywhere,
without regard for effects on other overlying landowners, so long as
there is no malicious intent to deny supplies to others. Reasonable use
interpretations limit the right in one way or another. A common limi-
tation is to the effect that only reasonable uses on the overlying land
are permitted. Another limits the overlying landowners to their "fair
share" of the safe yield or the total supply-the correlative rights doc-
trine belongs to this type of reasonable use concept.
3. The appropriation principle, usually established by statutory en-
actment, awards the superior rights to the first persons to put water to
beneficial use. The appropriation right is often appurtenant to land,
The President's Materials Policy Commission estimated that irrigation used about 47%
and industry 45% of all water withdrawn in 1950.


1957]









506 KANSAS LAW REVIEW [Vol. 5

but the land on which the water is used, instead of the land where it
occurs. The extent of the right is determined by reasonable beneficial
use, and the duration thereof is contingent upon continued beneficial
use.16
Some of the economic implications of these various water right
concepts will next be considered.
A. Flexibility
Man's ability to modify to his benefit the huge natural water dis-
tillation and delivery mechanism we know as the water cycle is rapidly
advancing. Water can be economically piped hundreds of miles; stream
flow can be rerouted or reversed; natural runoff can be accelerated or
retarded; water can be stored for future use in immense ground and
surface reservoirs. To a considerable degree, the measure of man's pro-
gress in using water resources is his modification of the natural patterns
of water occurrence. If efficient utilization and continued economic
progress in managing water are to be realized, institutional arrange-
ments must not bar the use of water any place for any purpose which
promises greater aggregate return over all costs.
In a sense, the very existence of private property rights in water
constitutes an obstacle to the adaption of water uses to new condi-
tions. To be sure, established private rights cannot be disregarded in
efforts to rearrange water uses. Changes cannot be effected unless pri-
vate right holders find them profitable and are willing to make them,
or unless public influence is brought to bear through various devices
such as taxes, subsidies, regulations, or eminent domain. But is there
any a priori reason for supposing that public control is more flexible?
Those who would withhold or expropriate private rights in the name
of flexibility appear to presume that the response of public agencies,
lacking market incentives, is more sensitive to changing economic
forces than private response motivated by private gain. This may or
may not be the case, but is a dubious presumption in my judgment.
The primary reason for public intervention is not that water rights
are inflexible, but that market mechanisms do not account for all costs
and benefits, particularly in the case of a jointly-used resource such
as water.
"KAN. G.S. 1949, 82a-707 states: "(a) Surface or ground waters of the State may be
appropriated as herein provided. Such ownership shall not constitute absolute ownership of
such water, but shall remain subject to the principle of beneficial use. .. (c) As between
appropriators the first in time is first in right. (d) Appropriation in excess of the reason-
able needs of the appropriators shall not be allowed."




--I


1957] SYMPosIUM ON WATER LAW 507

The chief obstacle to be overcome in effecting changes in use
under private rights is an economic one. The market ordinarily is an
efficient reallocator if the piper is paid. Often the real objection is not
inflexibility but the private receipt of the increasing economic rent of
water. The question of who should receive the growing income from
water's increasing scarcity is of a different character than the question
of what should be done with the water. The two should not be con-
fused.
But there are numerous concepts of private property in water-is
there any basis for preferring one or the other of these doctrines from
the standpoint of flexibility?
1. The Riparian Doctrine.-A strict "natural flow" interpretation
of the riparan right is highly inflexible, permitting little modification
of the natural flow either for consumptive or nonconsumptive uses.
Reasonable use modifications of the strict riparian rule have allowed
consumptive uses but limited them to riparian lands. A certain in-
determinate flexibility through a process of judicial rationing is thus
grafted on by reasonable use interpretations. It is difficult to say what
reasonable use means, and it apparently means different things to
different courts.1 It probably implies a continuous judicial reappraisal
and reallotment as unused riparian rights are asserted and existing
ones rearranged. Reasonable use could be interpreted to mean the most
economical use. But the definition often given, "reasonable in relation
to the like rights of other riparians," carries an equitable rather than
an economic connotation. And in practice, where water is scare, it
seems more likely to result in pro rata division of the water, or, if
prescriptive rights are recognized, something analogous to a common-
law appropriation rule. However, the case record is scanty thus far
on this point-more is likely to be forthcoming from the eastern states
as attempts are made to assert for irrigation purposes heretofore unused
riparian rights.18
Flexibilty should not be confused with vagueness and indecision.
Clearly defined property rights which can be expressed in quantitative
terms are more conducive to adjustments in use through market
mechanisms than ambiguous and indefinite rights. Uncertainty usually
favors the status quo-when in doubt, sit tight.
Marquis, Freeman, and Heath, The Movement for New Water Rights in the Tennessee
Valley States, 23 TENN. L. REV. 10 (1955).
SBusby, Regulation and Economic Expansion, op. cit. supra note 3 at 670.








508 KANSAS LAW REVIEW [Vol. 5

2. The Absolute Ownership Doctrine.-The absolute ownership
doctrine applied to ground water places no obstacle in the way of using
the water where and when it is profitable to the overlying landowners.
But too rapid depletion and actual destruction of self-renewing ground
water supplies may be the outcome of this principle when the demand
for water becomes great, since each overlying landowner is entitled
only to what he goes after. The rapidly falling water tables and intru-
sion of salt water into ground water in many parts of the country
testify to this." Even the American rule of reasonable use may not
avoid this disaster unless it is stretched to limit aggregate use to the
"safe yield" and to control spacing and drilling of wells. The correla-
tive rights doctrine, or some other type of rationing scheme, comes into
play modifying the absolute ownership principle still further when
reasonable use is interpreted to limit aggregate withdrawals to the safe
yield. The question becomes: If we all together can take only so much,
no matter how reasonable our needs, how much is each share?
There is no built-in coincidence of equitable distribution with most
efficient use of the water. On the other hand, neither does there appear
to be any overweaning barrier to efficient use inherent in reasonable-
use doctrines such as correlative rights, once the rights are clarified,
if right holders are free to buy and sell their rights and to change the
purposes and places of use.
3. The Appropriation Principle.-"First in time-first in right,"
the essence of the appropriation doctrine, has a kinship to the home-
stead principle by which much of the unappropriated land in the
United States was originally channelled into private hands. Although
establishment of both homestead and water rights necessitated benefi-
cial use, they differ in that the appropriation right to water may be lost
by nonuse. Unlike the riparian right, the appropriation right does not
confine water use to any particular place.
The appropriation doctrine has been charged with inflexibility.20
Why, it is asked, should the historical coincidence of first use congeal
the patterns of water use and block reallocation to new and more pro-
ductive purposes? Why in times of shortage should the water be
denied to a junior upstream appropriator in order to supply a senior

"THoMAS, THE CONSERVATION OF GROUND WATER 36-60 (1951).
"Engelbert, Political Aspects of Future Water Resources Development in the West, Water
Resources & Economic Development of the West, Report No. 1, 89-90 (Comm. on Economics
of Water Resources Development of the Western Agric. Econ. Research Council 1953).








1957] SYMPOsIUM ON WATER LAW 509

downstream appropriator for an unimportant use, perhaps with ex-
tensive loss by evaporation and transpiration en route? To make the
argument stronger and give it an equitable flavor, why, indeed, should
a man be permitted to water his lawn merely because he started using
the water first while another has not enough to drink? (Parentheti-
cally, it might also be asked why should such a state of affairs be
condoned as a result of water rights being tied to land ownership
either?) These emotionally-charged complaints have the familiar ring
of the age-old cries against luxury for some while others are in want.
Why should the English nobility waste land in hunting preserves while
the working man's children cry for bread? These may be righteous
indictments of something, but let us direct our arrows at the right
target-the appropriation principle is not it. Neither the riparian nor
the correlative rights principle will remedy these ills. Under most any
system of transferable private property rights in water, inequitable and
uneconomic allocation of water can occur. If water rights are freely
transferable, and market forces are allowed to operate, water will tend
to go to the highest bidder-this is the measure of the importance of
wants in the marketplace.
There is an element of rigidity in the appropriation doctrine if
appropriation rights are not severable from the land on which the water
is applied and are limited to the purpose for which originally diverted,
which has been true in a few states."' To avoid losing his priority, an
appropriator might continue to exercise the right, fully aware that
transferring the water to some other place for some other purpose
would yield greater economic returns. There is nothing in the idea of
"first-come, first-served" which implies restrictions of this type. Of
course, when there is a change in purpose of use, particularly from a
nonconsumptive to a consumptive use, downstream right holders may
be adversely affected. Changes in place of use and point of diversion
may likewise affect other right holders. If protection is given to other
users of the common supply in these cases of close interdependency,
as most appropriation statutes do, there should be no need to prohibit
changes in or transfer of the appropriation right. Such restrictions
frustrate the mobility which water, of all resources, most inherently
possesses.

NATIONAL RESOURCES PLANNING BOARD, STATE WATER LAW IN THE DEVELOPMENT OP THB
WEST 15 (1943) (referring to Wyoming).




_____________________________________









KANSAS LAW REVIEW


Physical Inflexibility.-Mention should be made of the fact that
water projects often involve large capital investments in permanent or
semi-permanent works. Decisions to undertake such works have a cer-
tain physical inflexibility and irrevocability which underlines the im-
portance of careful, long-range planning, regardless of the system of
water rights in effect and whether water resource development is public
or private.
B. Uncertainty
Much is said and written but probably little is known about the
effects of uncertainty upon economic decision-making.22 Some persons
doubtless enjoy taking chances, and it has been said that surprise is an
element of that variety which is the spice of life. Nonetheless, planning
of investment in water enterprises is dependent upon reliable estimates
of costs and return. To have any confidence in such estimates, the
prospective water enterpriser must have a reasonably definite idea of
the supplies of water available to him. A water right does not and
cannot, of course, guarantee water supplies. The caprice of precipita-
tion renders certainty of water supply a virtual impossibility, particu-
larly in the Great Plains area, although averages are of some value in
estimating, and man-made controls offer promise of greater stability
in supply. But water rights add their own uncertainty if they are not
clearly defined and measurable. As long as water is so abundant that
all demands can be satisfied at small cost, indefiniteness of water rights
may be relatively innocuous. When, however, competition for water
imparts a market value to raw water itself, uncertainty of rights may
have serious economic consequences.
Economic Consequences of Uncertainty
1. Uncertainty may shorten the planning horizon and result in
inadequate consideration being accorded to long-range economic fac-
tors. If costs can be deferred and returns accelerated, they will be.
Exhaustion of fugitive resources such as fisheries, petroleum, and
ground water under the unrestricted rule of capture are due in large
measure to the uncertainty to which this rule gives rise. Only if a
single user has control of the total supply or if all those who enjoy
rights to the common supply cooperate in conservation, can the uncer-
tainty of individual supply due to the rule of capture be eliminated.
m KNIGHT, RISK, UNCERTAINTY AND PROFIT (1921); SHACKLE, EXPECTATION IN ECONOMICS
(1949); 2 HART, ANTICIPATIONS, UNCERTAINTY AND ECONOMIC PLANNING (1940) CIRIACY-
WANTRuP, RESOURCES, CONSERVATION, ECONOMICS AND POLICIES 111-129 (1952).


I


[Vol. 5









SYMPOSIUM ON WATER LAW


2. Some capital investments, which later prove to be uneconomic
because of insecure rights to the water, perhaps discovered only after
prolonged and costly litigation, will be undertaken by venturesome
souls.
3. Other projects, possibly of great economic worth, remain un-
developed because of the deterrent effect of economic risks attributable
to indefiniteness of the water right.
With respect to definiteness of the right, the reasonable use version
of the riparian doctrine for surface water and either the absolute owner-
ship or American reasonable use rules for ground water do not make
a good showing so long as unused rights can be exercised at any time.
Reasonable use rights are not defined until litigation develops, and
reasonable use appears to involve continuing re-definition. The correla-
tive rights doctrine for ground water can be relatively certain to the
extent hydrologic facts permit, as California experience suggests.2
It will be generally agreed that the appropriation doctrine scores
highest on the test of definiteness. However, unless the movements of
water are known, and particularly the interrelationships of ground and
surface water, there will be difficult problems of determining when,
which, and how much junior appropriations should be reduced or cut
off in time of shortage. Dependability of supply for junior appropria-
tors is probably greater under the riparian rule. Shortages are likely
to be shared by all rather than borne entirely or first by the junior
appropriators as under the appropriation doctrine.24
An interesting legal question under the appropriation doctrine
which has not been fully resolved and one that could become of eco-
nomic importance with the increased emphasis on soil conservation,
is whether or not the appropriation doctrine applies to diffused sur-
face water which, if trapped and used on the land where it falls or
occurs, may reduce stream flow.25
When water appropriations for municipal use are authorized in
excess of present needs, temporary rights may accrue to this excess.26
These rights should be stated as definitely as possible in order that
efficient development of interim uses will be stimulated. Since, in all
SCiriacy-Wantrup, Some Economic Issues in Water Rights, J. FARM ECONOMICS 875 (Dec.
1955). See also, Pasadena v. Alhambra, 33 Cal.2d 908, 207 P.2d 17 (1949).
'Ellis, Some Current and Proposed Water Rights Legislation in the Eastern States, 41
IOWA L. REV. 255 (1956).
~HUTCHINS, SELECTED PROBLEMS IN THE LAW OF WATER RIGHTS IN THE WEST 110-115,
135 (1942). Hereinafter cited as SELECTED PROBLEMS.
SId. 351-352.


1957]








KANSAS LAW REVIEW


probability, municipal rights could have been secured later by eminent
domain, reservation for future uses has the salutary effect of deterring
investment in expensive, fixed capital which would have to be aban-
doned when the municipal priority is exercised.
C. Scales of Preferential Use
A number of states, including Kansas, have scales of preferential
uses in their water right statutes.27 Under the common law, domestic
needs for water were considered natural uses and took precedence over
all other. Appropriation statutes carry over this preference, ranking
domestic uses ahead of all others regardless of date of initial diversion
and frequently exempting them from the appropriation procedures
altogether.
Municipal, irrigation, and industrial uses are usually ranked next,
in that order. In varying degree, depending on conditions under which
preferences apply and the manner by which they may be asserted,
this policy modifies appropriations and other doctrines of water rights
by making the purpose of use, rather than date of appropriation or
ownership of land, the criterion for allocation of scarce supplies among
different uses. In addition, an element of rigidity in the institutional
arrangements regarding water use is injected by statutory fixing of a
heirarchy of priorities.
Market forces are not honored unless the preference scale happens
to conform to market values. In the arid Western states, where prefer-
ential rights are common, irrigation is usually ranked above industrial
uses.28 Generally speaking, however, industrial uses yield greater mar-
ket returns when competition for water between the two uses develops.
In the President's Materials Policy Commission Report is an estimate
that industrial uses on the average yielded market returns fifty times
greater than irrigation.29 These figures may be questionable, and cer-
tainly this is an example of averages concealing more than they reveal,
since returns are so variable, but the fact is that industry often does
outbid irrigation for water. As residential and most other municipal
uses are not business uses, the market value of the service is indicated
only by what municipal consumers are willing to pay, and, here, too,
irrigation usually cannot compete successfully. The economic superior-
ity of municipal and certain industrial uses over irrigation is even more
"Id. 337-358. See also KAN. WATER RESOURCES BD., Op. cit. supra note 13 at 118-124.
'Texas is an exception. SELECTED PROBLEMS 343.
*5 PRESIDENT'S MATERIALS POLICY COMMISSION it. supra note 1, 86.
I


[Vol. 5








SYMPOSIUM ON WATER LAW


pronounced when account is taken of the fact that such uses are largely
non-consumptive and do not preclude subsequent uses of the same
water.
However, as noted previously, it is not necessary to have information
on which uses of water are currently of greatest value to devise water
laws. Economic values are in a constant state of flux. If the population
of the United States grows up to its agricultural capacity and farm
surpluses give way to shortages, agricultural products will rise in value
relative to other products and the competitive position of agricultural
demands for water will be strengthened."8
The economic effects of preference scales are considerably mini-
mized in those states where they apply only to conflicts among pending
applications to appropriate Once the rights are perfected, priority in
time becomes firmly priority in right. If preferences are asserted by
condemnation, as in the states of Washington and Wyoming,"' market
values will continue to exert a major influence since the expected re-
turns from the preferred uses must be at least as great as from the
subordinate uses or condemnation proceedings are not likely to be
instituted.
D. Water Rights and the Interrelation Between Ground
and Surface Waters
Water rights law should square with hydrologic facts. One of these
is that ground and surface waters are interrelated, often closely so.
Indeed, most ground water has been surface water first and generally
returns to the surface again. As water consumption expands and com-
petition for water develops, these interconnections become more appar-
ent and take on great economic significance. Where ground and sur-
face waters are closely related, water rights to both should be governed
by a uniform principle. Kansas is one of the few states which fully
recognizes this fact of interrelatedness and applies the appropriation
doctrine both to ground and surface waters-to all waters of the state.
So long as ground water draft is not appreciable and surface uses are
0 In the property stricken desert lands of the Middle East irrigation has for ages been the
most vital need for water after drinking, stock drinking, and a few other simple domestic needs.
Frankly, we do not believe the American people, urban and rural alike, should look forward
with hopeful anticipation to such an eventuality in the United States. The height of our
standard of living is measured by our being able to enjoy luxuries-to use resources for other
than essential purposes. If water now being used for other purposes must be diverted to irriga-
tion to provide sufficient food, the standard of living will fall.
SELECTED PROBLEMS 337-345.
"Id. 353.


1957]








514 KANSAS LAW REVIEW [Vol. 5

nonconsumptive and do not disturb natural flow, different principles
for surface and ground water rights can exist side by side without
serious conflict.
Where ground and surface water are distantly related, as they may
be in the vast, deep, and slowly recharging ground reservoirs, which
are found in some sections of the high plains of Texas, New Mexico,
Oklahoma, and Kansas, different water right doctrines for ground and
surface water may operate for many years without great disharmony.
In fact, it may be preferable to apply principles of water rights, which
are different from surface water rights, to nonrecharging ground water.
In some respects the appropriation doctrine seems inapplicable to
ground water with negligible recharge or to overdraft of aquifers with
significant recharge-if surface supplies are affected only remotely.
The appropriation doctrine seems to have primary reference to a
continuous flow-affording a method of allocating both the regular
flow and reduced flows in time of drouth. The nonrecharging reservoir
is not a flow but a "stock" or a "store." Depending on one's viewpoint,
it may be thought that there is unappropriated water in the reservoir
as long as any is left, or that the reservoir is fully appropriated by the
first to tap it. Later appropriations do not physically preclude prior
appropriators from obtaining their water at the time, although future
quantities available are reduced. A burden of increased pumping ex-
pense is imposed on prior appropriators as the water table falls, and
at certain depths an economic limit may be reached. This limit is
reached sooner for small pumping units than it is for large. The
appropriation principle does have relevance to this aspect of water
"mining" and should, and generally does, afford certain protection to
the prior appropriators.8
In a New Mexico case it recently was ruled that a ground water
aquifer was fully appropriated when authorized uses would, it was
estimated, exhaust the economic potential of the aquifer in forty years.84
This interpretation of the appropriation principle in effect converts the
stock resource to a constant flow resource with a limited period. The
water is legally fully appropriated when being exhausted at a certain

SKAN. WATER RESOURCES BD., op cit, supra note 13 at 85-92, contains a discussion of im-
pairment of rights. On pp. 140-141 are found proposed amendments to the Kansas water laws
which would limit impairment of an appropritaion right to an "unreasonable" lowering or
raising of the static water table. See also SELECTED PROBLEMS 168-182.
"Reported by Thomas, Water Rights in Areas of Ground Mining, 12 CIRc. No. 347 (U.S.
Geol. Survey 1955).








SYMPOSIUM ON WATER LAW


rate. But why choose forty years as the time to make the water last-
why not ten, or a hundred ? All the ramifications of conservation policy
relating to nonrenewable resources are introduced by this question.
There are no ready economic answers to it, and none is given by any of
the common systems of ground water rights. Discounting of future
values does limit the economic time horizon, especially in private plan-
ning, although public planning may look farther into the future and
be less influenced by interest costs.
E. Waste
Nonuse and excessive or wasteful use are all economic losses and
all may occur under certain water rights doctrines. The riparian right
is not lost by nonuse, and unless or until riparian landowners find it
profitable to divert the water, much of it may flow past, unused, in
jurisdictions where this doctrine rules. Excessive use of ground water
is most prevalent under the absolute ownership doctrine and may also
become a problem under the American rule of reasonable use. The
appropriation doctrine may induce premature and relatively uneco-
nomic undertakings in order to establish the priority. This weakness
of the appropriation doctrine can be guarded against by limitations on
the granting of appropriation rights relating to quantities allowed,
definitions of beneficial use, and protection of the public interest.
Wasteful use is not condoned under this doctrine, and nonuse may
bring forfeiture of the right. Forfeiture procedures may, however,
actually encourage appropriators to exercise their rights to the fullest
extent, whether all the water is needed or not, in order to protect the
right. This result is not inherent in the appropriation principle and can
be minimized with proper definitions of nonuse and restrictions on
excessive use.
F. Adjudication
One last comment regarding economic aspects of water law seems
apropos-it relates to the process itself of settling disputes over water
rights. Litigation, including the time consumed in legal processes, is
an economic cost. Prompt, conclusive, comprehensive, adjudication
contributes to efficiency by reducing delays, removing uncertainties,
and by reducing legal expenses. Due to the transient character of water,
combined with irregular precipitation and the obscurity of water
movements through and over the ground, disputes will doubtless con-
tinue to arise, whatever concept of water right governs. The volumi-


1957]









516 KANSAS LAW REVIEW [Vol. 5

nous record of litigation in arid states does not offer much basis for
optimism on this score.
This matter has both substantive and procedural aspects. Adoption
of a concept of water right which is capable of definite measurement
appears to be a substantive prerequisite for minimizing conflict. The
superiority of the appropriation doctrine over the riparian doctrine is
pronounced on this count. Simplicity of administration is not, however,
a paramount consideration; the absolute ownership doctrine for
ground water has few advocates today, but it requires almost no ad-
ministration and little adjudication, since the overlying landowner is
not limited in his right to withdraw ground water.
On the procedural side, adjudication of all reasonably closely related
rights in a single action might have some economic advantages. The
Kansas Legislative Council proposals of 1954 include a recommenda-
tion along these lines similar to systems in use in most other western
states.8
The current legislative recommendations of the Kansas Water
Resources Board include a reference procedure which provides that
in water rights adjudication, the court may, at its discretion, call upon
the Division of Water Resources, acting as referee, for an investigation
of the physical facts. The report of the Division becomes prima facie
evidence of the facts, although opportunity to file objections is pro-
tected.8 This arrangement has worked well in several states in bringing
expert technical testimony to bear in adjudication and appears to be
worthy of consideration here.
Much experience has been gained in other states in matters of
enforcement and administration of water rights by the Chief Engineer
of the Water Resources Board, or his counterpart, from which Kansas
can profit. Drawing on this experience, the Kansas Water Resources
Board has proposed some legislative amendments to the Kansas water
laws which clarify and strengthen the position of the Chief Engineer
as "policeman" of water rights."8



SKANSAS LEGISLATIVE COUNCIL, REPORT AND RECOMMENDATIONS 15 (Dec. 1954). See also
Hutchins, Special Procedures for Adjudication of Water Rights and Supervision of Division:
General Survey of Types of Procedures in the Western States, presented at the Texas Water-
Law Conference, Austin (1956).
"KAN. WATER RESOURCES BD., op cit. supra note 13, 144-45.
"Id. 138-139.








SYMPOSIUM ON WATER LAW


THE WATER PROBLEM OR PROBLEMS IN KANSAS

Robert L. Smith*

I. THE PROBLEM OF PROBLEMS
One might say that the major water problem in Kansas is that of
inadequate water supply during periods of drouth. Perhaps many
Kansans, however, would think this erroneous. Even now, after five
years of drouth, a pollster engaged to sample Kansas on the question
"What is the major water problem in Kansas ?" would obtain a varied
response. The replies might include inadequate water supplies, control
of floods, control of pollution, inadequate laws governing the use of
water, the need for watershed deevlopment, the need to develop irriga-
tion, and the lack of sufficient recreational waters.
A. Factors of Viewpoint Diversity
In the absence of prior knowledge concerning the variable water
desires of the populace, such a survey might leave one perplexed and
irritated. Moreover, if one becomes sufficiently inquisitive, he will find
certain areas of agreement as to the nature of the problem, but extreme
divergence in prescriptions for a cure. There are, of course, sociological
overtones involved in water questions and resolution of specific prob-
lems must often await development of a broad public understanding
of specific factors involved. But let us first consider those factors that
lead to diversity of viewpoint.
Uncertainty of natural supply
First, nature is largely responsible for this divergence of opinion.
The average annual precipitation in Kansas is said to be twenty-seven
inches; yet this same average annual value varies from sixteen inches
in Stanton County to more than forty inches in Cherokee County.
Further, minimum annual precipitation of less than five inches was
recorded at one station last year and maximum annual records in
excess of sixty inches have been recorded in the past. The average an-
nual outflow of streams leaving Kansas is 12,000,000 acre-feet a year;
however, this figure reached 42,000,000 acre-feet in 1951 and has been
in the vicinity of 2,000,000 acre-feet in other years.1 This variability is
Executive Secretary, Kansas Water Resources Board, B.S. and M.S., State University of Iowa.
'See WATER RESOURCES FACT FINDING AND RESEARCH COMMITTEE, WATER IN KANSAS
(1954) for more detailed discussion of these statutes.


1957]








KANSAS LAW REVIEW


further illustrated by the fact that the arithmetic average rate of flow in
the Kansas River at Topeka is 5,252 c.f.s., but actually this flow is only
equalled or exceeded twenty-five per cent of the time. Similar figures
for the Delaware River at Valley Falls indicate an arithmetic average
flow of 352 c.f.s. which is equalled or experienced only fifteen per cent
of the time. We find that the western third of Kansas is endowed with
immense quantities of groundwater, but in eastern Kansas appreciable
groundwater supplies are found only in the alluvial valleys of the major
streams. Inasmuch as man's activities are superimposed on this varying
natural distribution, little surprise should be expressed over the asser-
tion of individually divergent and contradictory viewpoints. However,
the important concept is that this tremendous variance in the natural
distribution of water introduces an element of uncertainty which affects
greatly the attitudes of various water users.
Transient nature of water
Everyone knows that water travels in the so-called hydrologic cycle
-that it has the capacity of moving from beneath the ground, to the
land surface, to the atmosphere, back to the land surface, thence again
underground, and on again. Further, that on top or underneath the
ground, it moves down gradient in accordance with physcial laws.
Thus we become quite concerned with what the other fellow does or
does not do to the water either quantitatively or qualitatively, isasmuch
as what he does might affect us. Furthermore, we can add to our list
an element of suspicion, which also affects materially the views and
desires of individual water users.
Technological advances
There are still other reasons why individual definitions of "the water
problem" are so varying. Not only does nature insist on being frivolous,
but man is never satisfied with the status quo. Consider the impact of
light-weight pipe on water-use habits in this state. As a result of the
improved marketability of this product, irrigation is no longer confined
to western Kansas. As late as 1949, reliable sources estimated the irri-
gated acreage in the Marais de Cygnes Basin in eastern Kansas at 120
acres. Present water right filings for irrigation in the same area pertain
to approximately 9,000 acres. The ever-present possibility of such sud-
den changes in water-use habits in response to technological advances
introduces an added factor of insecurity in individual decisions.


[Vol. 5








SYMPOSIUM ON WATER LAW


Divergent needs
We have read for years that water supply is one of the nation's
greatest growth problems. Various experts have estimated that our
water use will double in the next twenty years.2 Such growth should
not necessarily be feared, but it will produce much conflict of opinion
because, aside from domestic water, we do not have uniform interests in
water. An industrialist may be interested in water for processing or
cooling purposes. A farmer's needs may involve irrigation and stock
water. A dentist may be primarily interested in recreational pursuits.
Thus, individual viewpoints are influenced by personal desires and each
person enthusiastically supports his own cause.
Economic values
Finally, too much or too little water can add up to a good many cold,
hard dollars, and everybody is entitled to a specific opinion when his
pocketbook becomes involved. Certainly, water can be termed an
economic resource. You will remember that Water in Kansas, the report
published by the fact-finding committee two years ago, estimated that
1) each inch of deficient rainfall causes a reduction of $20,000,000 in
annual cash farm receipts in Kansas; 2) average annual out-of-pocket
losses from drouth in Kansas are $35,000,000; 3) average annual out-of-
pocket losses from drouth in Kansas are $75,000,000.8 A recent poll of
county agricultural agents, conducted by the State Water Resources
Board, indicated that during the past calendar year Kansans spent more
than $10,000,000 in hauling water to the farms and ranches of this state.
But why talk only about the economic losses produced by too much or
too little water? What of the economic returns to be obtained by put-
ting water to various beneficial uses? What value can we place on our
unused waters, either in terms of absolute worth, or in terms of the
agricultural or industrial productivity they might key? How much
can we afford to spend to develop presently unused waters? No one
knows for certain because the factors that determine this answer are
extremely variable. One thing is sure-wherever man can see invest-
ment in water paying dividends, he will strive to make that investment
The difficulty, of course, is that more than one potential user leads to
more than one potential use, and thus the residual economic value of

'H. R. Doc. No. 315, 84th Cong. 2d. Sess.
SSee WATER IN KANSAS, op. at. supra, note 1.


1957]









520 KANSAS LAW REVIEw [Vol. 5

the resource introduces a final and all powerful reason for conflict in
individual opinion.
B. The Need for a Proper Prospective
The water problems in Kansas like the water problems in every
other state cannot be reduced or resolved by mere academic treatment
of engineering, economic, or legal questions. Unless and until a sizeable
segment of the populace of any area has been given an opportunity to
weigh a factual presentation of the various water conditions and needs
of that area, composite resolution of individual desires may well be
impossible of accomplishment. The foremost problem, therefore, ap-
pears to be one of education between professions, between water users,
and even in some cases, between states. That is to say that for any
person, any profession, or even any state, to limit individual consid-
eration of water problems to just those immediate personal needs leads
nowhere, and will produce nothing of tangible and lasting value. The
inherent characteristics of this resource as outlined above deny the
success of any individual approach.4

II. SECURING ADEQUATE WATER DEVELOPMENT IN KANSAS
With the foregoing thoughts in mind, attention can now be directed
to more specific discussion of the Kansas situation. A brief review of
the limiting statistics in the state water account is appropriate.
A. The Water Budget
The State of Kansas receives an average of twenty-seven inches of
precipitation each year. This represents a gross income of approximately
118,000,000 acre-feet per year. Inflow from adjoining states is sufficient
to allow the rounding off of this figure to 120,000,000 acre-feet. In very
round numbers, ninety per cent of this water returns to the atmosphere
by either the process of evaporation or by the process of transpiration.
Perhaps as much as forty per cent of the water so returned is utilized
beneficially in the growing of crops.6 The remainder actually repre-
sents consumptive waste. Until we find some way of reducing mea-
surably this ninety per cent evapo-transpiration requirement, the re-
maining ten per cent, some 12,000,000 acre-feet on the average, together
'A somewhat similar treatment of the inherent physical, economic, and social characteristics
of the water resource was presented by the author in Chapter 34, IowA's WATER REsouRCES
(1956).
SSee WATER IN KMANAs, supra note 1.








SYMPOSIUM ON WATER LAW


with 200,000,000 or more acre-feet of ground water estimated to be in
storage in this state, represents the water quantity now available for con-
trol, development, and use. This simplified budget may seem to imply
that what does not return to the atmosphere runs off in surface streams.
Actually, it is based upon the assumption that groundwater storage re-
mains constant and that groundwater recharge balances groundwater
discharge. Actually, such an assumption is false, in some areas of the
state.
B. Past Action and Present Challenge
Physically speaking, efforts have been made to control this water
loss by drainage, erosion control, and flood control structures. Some
water has been captured for useful purposes by the utilization of
a number of methods and devices, including land treatment, wells,
storage reservoirs, and simple suction pipes. In some instances, such as
the case of internal improvement districts, enabling legislation was
found necessary to provide for the sufficient pooling of resources for
tackling tasks too big for individual solution. The very nature of the
resource, particularly its transient characteristics, also made it necessary
to enact certain regulating statutes governing these activities. Thus, the
construction of dams, levees, and channel changes are subject to review
and approval by the appropriate state regulating agency. Also, quality
control (i.e., pollution abatement) legislation has long been in effect.
In fact, a tabulation of past physical developments and legislative actions
that have been directed at the many water problems in this state would
be impressive indeed.
For all this activity, only a very small amount of water has actually
been controlled and regulated by man so as to be of direct use in fur-
thering the agricultural and industrial economy of the state. Further,
the amount actually consumed is extremely small. For example, the
estimated industrial withdrawal from all sources is approximately
1,00,000 acre-feet per year but the actual industrial consumption is ap-
proximately 32,000 acre-feet per year. Similarly, the total municipal
withdrawal of 227,000 acre-feet results in an actual consumptive use of
only 80,000 acre-feet.6 Consumptive use for irrigation has increased
rapidly in recent years, perhaps as much as a half a million acre-feet
in the last several years. Not all of this irrigation usage, however, con-

SIbid.


1957]








522 KANSAS LAW REvmw [Vol. 5

stitutes a direct depletion in the transient supply. A measurable portion
of this new irrigation water is coming from groundwater storage.
Not all of the net transient water supply or available groundwater
storage can or should be developed for beneficial purposes and/or con-
sumptive use. Limitations in physical storage, in water quality, and in
economic margins, as well as in certain interstate obligations, preclude
this. On the other hand, appreciably increased economic utilization of
this water appears physically possible in many areas. But the need for
additional development is in the offing. Everywhere water require-
ments are on the upturn.
Actually, future increases in water usage will stem from three pres-
sures: 1) increasing population; 2) a desire to convert waters not now
used to beneficial uses; and 3) increased water requirements in present
uses brought about by new technological developments. Should an at-
tempt be made to satisfy all three of these pressures? If not, where is the
line to be drawn? Here then is the basic water challenge before this
state-how to get maximum utilization of a sporadic, natural supply to
meet the ever-increasing demands of society.

C. Institutional Actions Necessary to Combat Climatic Extremes
The natural recurrence of climatic extremes is one of the most
serious threats to the future economy of the state. These natural varia-
tions must be neutralized. With respect to agriculture, one obvious
course of action is to develop supplemental water supplies. With re-
spect to industry, there is the need for maintaining stable sources of
supply. In each case, the physical facilities necessary to accomplish these
objectives cost money. Also, in either case, a water supply without a
valid right to use it or a water right without a supply to serve it be-
comes of little value. Hence, before agriculturalists, industrialists, gov-
ernmental agencies or entities will be willing to make the investments
necessary to increase the utilization of the waters of this state, they will
demand and need assurance relative to both their present and future
rights to use water for designated purposes. This specific problem was
cited by Governor Schoeppel's advisory committee in 1944 and was
undoubtedly a motivating factor in the Legislature's decision to enact
the 1945 Water Appropriation Act, which provides a procedure for the
acquisition of water rights on the basis that first in time is first in right.








SYMPOSIUM ON WATER LAW


D. Water Conservation-What Must It Be?
No one can deny the need for increased development and utilization
of our available resources. Yet, the question is often asked whether
legislation that encourages resource development to serve personal in-
vestment does not lead to exploitation rather than to conservation. In
the case at hand the answer quite frankly is "no." Exploitation could be
the result, however, if no effort is made to maintain a continuing ap-
praisal of the physical situation. A brief explanation of what conserva-
tion must mean when applied to water resources and citation of a few
specific situations that do exist or might some day exist here in Kansas
will serve to illustrate the implications of the foregoing observations.
What constitutes water conservation? One oft quoted definition of
the term conservation is "the wise use and management of a resource."
Such a definition implies use, not preservation, and as such it is par-
ticularly apropos in the case of water. However, it is disturbingly diffi-
cult to preserve water because of the physical laws that govern its
motion. One cannot put water in an isolated pond or reservoir and ex-
pect it to remain there forever. In the absence of sustaining inflow, it
will in time disappear, either by seepage into the ground, if geologic
and construction conditions permit this, or by evaporation to the atmos-
phere. Likewise, water stored underground or water diverted to surface
streams will flow downgradient, and the fact that one has injected wa-
ter to a specific ground formation by use of a specific well in no way
guarantees that he will be able to go back in fifteen years, or five years,
or even two years, and extract this same water from the same well.
The concept that conservation means preservation is simply foreign to
the physical laws governing water. Hence, conservation as applied to
water must be construed to mean the wise use and management of the
resource as it becomes available to man in the natural hydrologic cycle,
and thus it becomes advantageous to society to encourage the new de-
velopment and use of water so long as the total use at any one time does
not result in the exploitation or overdevelopment of the total available
supply. Failure to develop all available waters within the controlling
limits of the hydrologic cycle and practical economics does not mean
that the unused waters are being preserved or conserved. Instead the
conclusion to be drawn is that unused waters are going to waste and
such waste constitutes a significant economic loss.


1957]








524 KANSAS LAW REVIEW [Vol. 5

E. The Need for Comprehensive Water Planning
Assuming then that increasing control, development and use of the
waters of this state, within reasonable limits, represents a sound ob-
jective both from an economic and a conservation standpoint, we must
ask what is needed to avoid overdevelopment or exploitation? The
answer must lie in a continuing factual appraisal of the development
status, proper administrative and legislative response thereto, and an
enlightened understanding of the over-all water problem by the people
concerned.
In Kansas, the State Water Resources Board has the responsibility
of developing a plan of water resources development for each area of
the state. A water plan must have many component parts and yet it
cannot have any fixed, rigid dimensions. Such dimensions as it does
have must be flexible because the basic water requirements are con-
stantly changing in response to new economic and sociologic pres-
sures.' Nevertheless, such a plan must represent at any given time the
best possible appraisal of the physical needs and legal policies neces-
sary to cope with the conditions presented. Whether such a plan when
developed would have any value depends upon whether the admin-
istrative and legislative branches of government are willing to imple-
ment it. They will be willing to do that when and only when the
people in the area in question are in agreement with it. For the reasons
cited at the start of this discussion, no such common ground of under-
standing can be developed in the absence of a factual presentation and
integration of the factors to be considered, in a form understandable to
the interested public. Therefore, the State Water Resources Board has
recommended the preparation during the next three-year period of pre-
liminary planning reports in twelve divisions covering the State of
Kansas. A primary objective of these reports is to document, consoli-
date, and integrate under one cover the available water data in each
of the twelve areas. Primary assistance in the preparation of these re-
ports is being furnished by the Division of Sanitation, State Board of
Health; the State Geological Survey; the Agricultural Experiment
Station at Kansas State College; and the Division of Water Resources,
State Board of Agriculture. Additional counsel is being and will be
sought from other local, state and federal officials and private organi-

See IowA's WATER REsoUREs, Chapter 34 (1956).








SYMPOSIUM ON WATER LAW


zations. Properly done, these reports should: 1) eliminate much of the
present mystery and propaganda surrounding water problems and lead
to a much better public understanding of the over-all problem; 2) serve
to guide and encourage future water developments at all levels of gov-
ernment and private enterprise; 3) aid the administration of existing
water laws; and 4) point the way to needed legislation. If the reports
are improperly done, they could constitute an obstacle to the future
progress and well-being of the state. Undeniably, if the reports are
confined solely to the hydrologic and engineering aspects of water
problems and contain no consideration of economic factors or existing
legal barriers, they could well prove valueless.

III. SOME SELECTED EXAMPLES
Obviously, certain limiting considerations must be defined in any
given area. However, all problems will not be subject to the same type
of limitation. In some instances, the limits of water development will
be imposed by hydrologic or physical conditions. In other cases, the
limitations will be those of economics. In still other cases, legal or insti-
tutional limitations will confine development and individual desires for
development. Finally, in some instances, development will be thwarted
because of our inability to overcome sociological problems stemming
from conflicting desires. A few examples of certain water problems
that either exist or could be hypothetically assumed to exist in this state
will serve to illustrate the foregoing statements.
A. The Problem of Ground Water Mining
The Physical Condition
In the high plains area of western Kansas, there is a tremendous
amount of groundwater in storage. Geologists tell us that this avail-
able water which is obtainable from the Ogallala formation, has been
accumulated over a great period of time and their studies now indicate
that the water added each year does not exceed on the average a quarter
of an inch per unit of surface area. This quarter of an inch of water per
year is equivalent to an average recharge volume of approximately thir-
teen acre-feet of water per year per square mile. In the same area, pres-
ent economic factors make it feasible to pump water from the ground-
water supply for use in agricultural irrigation. Development of this irri-
gation provides a means for the landowners in the area to stabilize their


1957]








526 KANSAS LAw REVIEw [Vol. 5

farming operation despite wide climatic extremes. However, one irri-
gation well pumped all day at the rate of 450 gallons a minute, yields
approximately two acre-feet of water. In one week of continuous pump-
ing from one 450 gallon per minute well, the amount of water ex-
tracted is equivalent to the natural average annual replenishment over
one square mile. Stating it another way, normal practice in this area re-
quires the application of a minimum of two feet of water per year to
each acre irrigated. Thus if only sixty acres in one square mile are
irrigated, the total annual pumpage from the groundwater can be ex-
pected to approximate 120 acre-feet. Some of this water returns to the
ground for not all of it evaporates or transpires to the atmosphere. Even
assuming that one-third of the water applied is recovered and available
for reuse in the future, (a very liberal assumption), there remains a net
consumptive pumpage for those sixty acres of eighty acre-feet per year.
Compare this figure with the natural recharge of thirteen acre-feet per
year, over 640 acres. Obviously, the books are not balanced, and it must
be concluded that such pumpage is taking water from storage and
that as time goes by the available storage will become less and less.
Selecting the limiting factor: What should constitute the limiting
factor on this particular type of water development? Should develop-
ment continue at whatever pace individual man chooses to adopt until
the physical supply is exhausted ? In other words, should the limitation
be imposed by hydrologic factors? Of course, man could not economic-
ally exhaust the entire supply. Sooner or later, as the storage supply is
exhausted, operational factors such as pumping lifts, would impose
practical economics limits on individual operators. But perhaps neither
hydrologic nor economic limitations should wholly govern the eventual
handling of this problem. Perhaps legal or institutional limitations
should be imposed. Stated another way-would it be in the interest of
the people of the local area, and for that matter the state, and even the
nation, to develop legal rules that would guarantee the availability of
water for some given period of time? Would it be better to let indivi-
dual desires compete with one another until economic or physical limi-
tations become operative ? Those who are not familiar with this problem
may feel that no pumping should be allowed since any pumpage tends
to reduce the available water reserves. Keep in mind, that this is a rela-
tively unique situation and that without pumpage the amount of water
in storage will remain essentially constant. Keep in mind, further, that








SYMPOSIUM ON WATER LAW


the water in storage amounts to a tremendous volume, perhaps a couple
of million acre-feet. Should laws deny the people in the area any op-
portunity to develop the water for economic gain? After all, the water
represents a very significant economic potential; yet, undeveloped or
unused, the same water provides little, if any, addition to the economy
of the state.
During the past year, this matter has been discussed by the State
Water Resources Board on several occasions. The problem outlined is
admittedly unique and in certain ways isolated to one segment of the
state. It can only be answered by the exploration of certain policy deci-
sions on the part of someone. At the present time, our law centralizes
at the state level all administration of the laws governing the beneficial
use of water. There are many sound reasons for such centralization of
authority, but it might be asked whether complete centralization is
entirely equitable in the area just described. If someone, someday, is to
make a binding policy decision establishing the total amount of water
to be extracted in the various areas served by the Ogallala formation,
should that decision reflect a rate that will assure sustained usage for
25, 50, 75, or 100 years? Possibly the people in that area should have
considerable voice in making that decision. If so, the answer lies in the
development of certain local entities of government that would have
at least limited administrative authority relative to water use. How such
entities should be created, what general powers they should have, what
special powers they should have, cannot be decided without sound legal
research. Certainly, such questions could not be answered intelligently
in the absence of a firm appraisal of the hydrologic and economic fac-
tors peculiar to the area. Conversely, any planning report on such an
area that omitted consideration of existing and needed legislation would
be of limited value.

B. Problem of Surface Water Storage
The need for storage
Contrast the foregoing problem with the situation in eastern
Kansas where there is almost a complete dearth of groundwater
except in the alluvial valleys. There is, however, an ample supply
of surface water except for one consideration. Nature does not furnish
this supply in a stable sustaining and uniform rate of flow. Instead
the water is made available in an erratic pattern including periods of


I


1957]








KANSAS LAW REVIEW


plenty and periods of famine. One obvious approach to eastern Kansas
water problems is through surface storage. The principle of surface
storage is almost unanimously accepted by all interests, but a method
of obtaining the storage is not. Most of the divergence of opinion hinges
around a couple of adjectives-"large" and "small"--commonly com-
bined with the noun, "dam." What constitutes a large dam and what
constitutes a small dam defy intelligent definition. Particularly is this
so from an engineering standpoint because the fundamental principles
of dam design and dam construction are consistent regardless of the
size of the structure. Yet almost all reservoir programs are uniformly
challenged by someone as being too large or too small, and their rela-
tive merits are argued on the basis of the two adjectives mentioned
above. Actually, a storage problem can be solved easily once the socio-
logical hurdle is cleared, i.e., once there has been a selection of the water
supply or flood control target to be served. Obviously, eastern Kansas
needs surface storage. Yet inability to overcome sociological limitations
has constituted a deterrent to all programs, large or small.
Selecting the limiting factor
In terms of the future, however, an even more pertinent question
in the eastern Kansas storage problem may not involve that of structure
size, but rather that of the function to be fulfilled by the structure. In
eastern Kansas to date, much emphasis has been placed on protecting
non-water developments from the destructive force of water. In many
instances, there are sound economic, public health, and security reasons
for resolving this control problem. However, in the future, all three of
the reasons cited for increased water use will be applicable to eastern
Kansas and competing storage requirements to be anticipated. These in
turn will lead such questions as these: What is the limit of physical stor-
age that can be provided? With a given amount of storage, what new
use can be made of the controlled water? Will the eventual limitation
on storage be controlled by physical or economic considerations ? Which
of these factors becomes the limiting one in the Kansas water future can-
not be determined as of this date. Further, if it were determinable as of
now, the answer might change in 10, 15, or 25 years because of change
in economics brought about by either a change in relative values or a
change in basic technology. Obviously, the correct answer to this prob-
lem as of any one date can be obtained only by a continuing and con-


[Vol. 5








SYMPOSIUM ON WATER LAW


stant appraisal of the relative needs of society and the physical and
economic factors controlling our ability to provide for these needs.
C. A Problem of Water Quality
A developing situation
Another problem to be encountered in the future development of
Kansas water will for the moment be cast on a hypothetical basis al-
though practical situations do not differ too much from the situation
cited. The Kansas River, which flows through Lawrence, originates
with the junction of the Smoky Hill and Republican Rivers some 125
miles upstream. Under natural conditions, the water in the Republican
River is of better quality than that in the Smoky Hill, and the quality
obtained in the Kansas River below Junction City is brought about by
the compositing of the flows of the Republican and Smoky Hill Rivers.
Kansas River water is of adequate quality for present municipal pur-
poses at downstream locations. Within the foreseeable future the Kansas
River will be the source of the drinking water for over a quarter million
persons. It becomes necessary, therefore, to assure that adequate quality
of water is maintained in this river in the future. During the past ten
years, several changes have taken place that may materially alter natural
conditions. First, there has been much irrigation development in the
Republican River Basin, both by irrigation districts and by individuals.
It seems likely that the annual yield of water from the Republican
Basin will be depleted measurably in the years ahead as a result of
this irrigation development. Secondly, as the waters of the Republican
valley and the other tributary streams are used more and more for irri-
gation, the salt or mineral content of the return flow can be expected
to increase because of the leeching action of the irrigation process.
Hence, it is to be assumed that the quality of the water in the Kansas
River will deteriorate with time owing first to the diminution of cer-
tain tributary inflows, and secondly to the deterioration of water quality
in some of those tributaries.
Selecting the limiting factor
One way of offsetting this problem is to provide sufficient storage
of excess flood waters for dilution purposes since such waters are
chemically of better quality than the low water flows. An alterna-
tive solution might require the imposition of certain restrictions on the
upstream uses. However, the hypothetical future problem does not stop


1957]








530 KANSAS LAW REVIEW [Vol. 5

with consideration of this tributary stream development because water
use in the Kansas River Valley can be expected to increase greatly, both
agriculturally and industrially.
At the present time, the groundwaters in the Kansas River Valley
are of sufficient quantity to sustain river streamflow during drought
periods. That is to say for the most part, the Kansas River is a gaining
stream with its flow ever-increasing as it goes down stream owing to
the inflow and seepage of groundwater out of the valley alluvium. Con-
ceivably, sufficient pumpage demand could develop in the alluvial
valley to lower groundwater levels to the point that the river is forced
to feed the valley as contrasted to the valley continuing to feed the
river. Should this degree of development take place, a couple of ques-
tions would immediately come to mind. Should the administration of
existing state law to be pointed toward the eventual prohibition of valley
pumpage somewhat short of the point where this possible piracy of the
river might occur? Perhaps final answer to that question should not be
made until it is determined whether or not sufficient surface storage
can be created somewhere to sustain enough water in the river to allow
fulfillment of these combined ground and surface water demands. If
it can be readily determined that a physical limitation prohibits such
surcharging of the streamflow by surface storage, then obviously the
legal limitation must be considered. On the other hand, if there is no
physical limitation, the question resolves down to whether or not such
surcharge storage can be provided within an economic limit that
justifies the end to be sought. In any event, it can be seen that sometime
in the future water development along the Kansas River might be
controlled by hydrologic considerations, economic considerations, or
legal considerations. Which one is most appropos now or in the future
cannot be determined in the absence of exploration beyond the limits
of this discussion.
D. Problems of Interdisciplinary Presentations
Academic and objective analysis will not necessarily provide
the final action. Even though it can be clearly shown that a
certain economic consideration should limit a given development,
or that certain proposed legal guides are needed to provide adequate
control, the people may not accept the academic answer. Thus, some-
where at some time any one of these problems that appear to be lim-








SYMPOSIUM ON WATER LAW


ited by purely physical, economic, or legal conditions may actually be
subject to a sociologic limitation resulting from the public's inability to
arrive at a common or prevailing decision. Many of the sociological
limitations encountered result from the inability of various professions
or specialists to present the facts of a situation in a way that is under-
standable by the public.
It appears possible, for example, that one of the most serious and
immediate deterrents to the watershed movement that has developed
throughout the nation in recent years will be the inability of engineers,
economists, lawyers, and lawmakers to establish and implement accept-
able procedures relative to the assessment of costs in response to benefits
derived in the flood prevention program. The so-called Hope-Aiken
legislation enacted by the last two sessions of the Congress provides
for material assistance in the development of watershed flood preven-
tion programs. However, that legislation requires local interests to pro-
vide the necessary easements and rights-of-way. On larger projects
these costs, although minor in terms of the total program, will be
substantial enough for individuals to question the relative equity of
personal assessments. On face value, this may not appear a very difficult
task. After all, there have been internal improvement special assessment
districts of one type or another for a number of years in American
history; one of the primary examples in this part of the country being
drainage or levee districts. Down through the years, a procedure has
been established for the appraisal of drainage benefits and based there-
on, people have accepted the assessment of costs.
Despite this long history of drainage development, two contrasting
elements enter into application of this type of taxation of flood control
works. First, people are used to being assessed for drainage projects, and
secondly, if a drainage problem actually exists, they are willing to go
along because it means almost immediate relief each and every year
thereafter. Flood control economics and projects, however, are relatively
new and must be based on a calculated risk and an evaluation of the
per cent chance of flood occurrence. While areas needing drainage are
usually subject to drainage problems year in and year out, those areas
to be protected by flood prevention measures are for the most part
subject to flooding but once in several years. Hence, a man is not quite
as willing to accept a special assessment for flood control works be-
cause it may take a number of years before he obtains any return on


1957]








KANSAS LAW REVIEW


his investment, and besides, it may not flood next year, anyway. Ob-
viously he will examine the assessment procedures with a most critical
eye. Here is a program where development should be advocated
wherever economically sound; it presents a positive approach to some of
the farm water supply (remember the $10,000,000 hauling cost cited
earlier) and farm water control problems encountered in some areas
of the state. Yet even though the economics of a project are unusually
sound, and even though equitable legal procedures are provided for the
determination of individual assessments, it appears quite logical to con-
clude that a tremendous educational program will have to be com-
pleted before landowners become acclimated to the engineering pro-
cedures and the economic concepts of land enhancement that must be
used as a basis for determining individual assessments.

IV. CONCLUSION
No attempt has been made herein to present a detailed accounting
of the water problems of this state. Such a documentation would far
exhaust the available space. Other papers included in this edition treat
in more detail some of the legal and administrative problems suggested
or touched herein. If the remarks persented here have in any way
suggested new thoughts or ideas appropriate to the reader's individual
problems, some justification can be claimed for this extremely general
and random presentation. In summary, there is every reason to be-
lieve that appreciably more control and beneficial use can and must be
made of the waters of this state. The requirements for a successful
water future vary tremendously and will continue to do so in the years
ahead. The key to success rests with each and all of us and is dependent
primarily on the willingness of various professions and the several water
interests to approach the task with a mutual desire to succeed.


[Vol. 5









SYMPOSIUM ON WATER LAW


WESTERN WATER RIGHTS DOCTRINES AND
THEIR DEVELOPMENT IN KANSAS

Wells A. Hutchins*

From time immemorial, the West-and by that is meant the seven-
teen Western states-has witnessed the introduction, development, and
sometimes the death of various water rights doctrines. In the view of
the New Mexico Supreme Court, the law of prehistoric Indian tillers
of the soil, to judge from the ruins of their irrigation systems, extended
to nonriparian as well as riparian lands.1 Legal principles governing
uses of water appeared in the Southwest with the Spaniards and Mexi-
cans, and elsewhere with the westward migration of Anglo-Saxons.
From the earliest times in much of the West, some form or forms of
orderly legal process in diverting, conveying, and utilizing available
water supplies proved necessary to the stability of civilized communities.

I. CHARACTER OF WATER SUPPLIES TO WHICH WATER RIGHTS ATTACH
Notwithstanding the fact that water sinks from the surface into the
ground under certain circumstances and rises from it under others,
whether an available water supply is on the surface or in the ground
at a particular time may make considerable difference in determining
rights to its use. With respect to this, distinctions between rights to the
use of surface and ground waters have been abolished in some juris-
dictions, but in others they are still observed. It is necessary to take
account of historic legal classifications in any general discussion of
water rights law.
Waters on the Surface
In legal parlance, then, natural water supplies on the surface of
the earth comprise chiefly 1) watercourses, including lakes and ponds,
whether or not physically connected with stream systems, 2) diffused
surface waters, and 3) springs.
A natural watercourse has these essential elements: 1) a stream,
2) flowing in a channel with definite bed and banks, and 3) origi-
nating from a definite source or sources; and it includes the under-
Farm Economics Research Division, Agricultural Research Service, United States Depart-
ment of Agriculture; LL.B. 1909, George Washington University.
1Hagerman Irr. Co. v. McMurry, 16 N.M. 172, 181-182, 113 Pac. 823 (1911).


1957]









KANSAS LAW REVIEW


flow. Except under circumstances that call for exact phraseology,
"watercourse" and "stream" are often used synonymously. That is being
done in this article.
Waters moving vagrantly over the surface, not concentrated in
channels of such character as to conform to the requirements of a water-
course, are known as diffused surface waters. These are often loosely
termed "surface waters."
A spring is a place where water issues naturally from the ground
upon the surface of the earth.
Waters in the Ground
From a standpoint of rights of use, ground water may be defined
as all water in the ground that is free to move by gravity, is capable
of being extracted from the ground, and is susceptible of practicable
legal control. This necessarily excludes subsurface water that is not free
to enter wells.
Again, in the water-rights jurisprudence of many states, ground
water is divided into 1) definite underground streams, including the
underflow of surface streams, and 2) percolating water.
A definite underground stream has the same essential characteristics
as a watercourse on the surface. Its chief distinction is that it is buried
in the ground. This obviously brings difficult problems of proof with
respect to existence and location.
Included in the general classification of definite underground
streams is the underflow or subflow of a surface stream. This consists
of water in the soil, sand, and gravel immediately below the bed of the
open stream, which supports the surface stream in its natural state or
feeds it directly. Aside from the intimate association of underflow with
a surface stream, underflows and definite underground streams have
substantially the same physical and legal characteristics, and they shade
into each other.
Ground waters other than those in definite streams are called
percolating waters.
Legal subclassifications of ground water-such as above noted-
have been sharply criticized by competent ground-water hydrologists
as having no scientific basis.2 Statutes of some Western states, including
Kansas, make no such distinction with respect to the acquirement and

SThompson and Fiedler, Some Problems Relating to Legal Control of Use of Ground Waters,
30 J. AM. WATER WORKS ASSN. 1049-91, particularly 1055-61 (1938).


[Vol. 5









SYMPOSIUM ON WATER LAW


exercise of rights of use. In some other states, the trend is toward
bringing into one category most ground waters over the use of which
controversy may arise. Nevertheless, the historical legal distinction per-
sists in the jurisprudence of certain other Western states, including
California and Texas, which currently have by far the largest total acre-
ages irrigated solely with pumped ground water.8

II. MAJOR WATER SUPPLIES AND APPLICABLE DOCTRINES
Watercourses
By far the largest part of western water law relates to watercourses,
chiefly those on the surface of the earth. From these flowing streams,
the earliest settlers built ditches to bring water to their communities
and fields. This the Indians in the Southwest had done in prehistoric
times, and in some localities they were still doing it when the Spanish
explorers came.4 Long before rights to the use of ground water had
been litigated on any extended scale, the high courts of the West had
rendered hundreds of decisions in controversies over uses of water of
surface streams, and the legislatures had enacted many laws respecting
them.
Riparian, and appropriation doctrines.-Out of the repeated con-
tests for supremacy between litigants who wished to use water from the
same stream, the supply of which was not enough for all, there evolved
two antagonistic doctrines of water rights-the riparian doctrine and
the appropriation doctrine.
The riparian doctrine accords certain rights to the owner of land
contiguous to a watercourse solely by reason of location of the land with
respect to this natural water supply. Unless the land actually borders
the stream or is crossed by it, no rights to the use of its waters can be
acquired under this doctrine. The appropriation doctrine, on the con-
trary, disregards the feature of necessary contiguity of land to the water
supply and accords rights in streams on the basis of priority of diversion
and use-on the early established principle that: "As between appro-
priators, the one first in time is the first in right."5
The doctrine of prior appropriation is recognized in all seventeen

SHutchins, Trends in the Statutory Law of Ground Water in the Western States, 34 TEX. L.
REV. 157-191 (1955).
'Hutchins, The Community Acequia: Its Origin and Development, 31 Southwestern Histori-
cal Quarterly 261-284 (1928); HUTCHINS, THE NEW MEXICO LAW OF WATER RIGHTS 4-6 (1955).
'CCAL. Civ. CODE, 5 1414 (1872).


1957]









536 KANSAS LAW REVIEW [Vol. 5

Western states. The riparian doctrine, however, became a part of the
water rights law of only nine of them-the six lying on the 100th
meridian, extending from North Dakota to Texas and including Kan-
sas, and the three bordering the Pacific Ocean.6 In these nine states, the
two conflicting systems grew up together; but their present inter-
relationships differ considerably in the several jurisdictions.7
Origin of the riparian doctrine.-Whatever may have been the case
with respect to the appropriation doctrine-and as noted below, there
is some controversy over the matter-the riparian doctrine did not origi-
nate in America. It had its roots in the civil law of Rome, and it was
brought here by three routes, as follows:
1) The Spanish and Mexican governments, when making many
grants of land in Texas, included rights in contiguous streams-a policy
which the Spanish civil law had derived from Rome, and which was
continued not only by the Republic of Texas, but for many decades
thereafter by the succeeding state government.8 But it should be men-
tioned here that although Arizona and New Mexico were also colon-
ized by the Spaniards and Mexicans, the supreme courts of those two
states long ago repudiated the riparian doctrine as having never been
effective within their confines.
2) Riparian principles of the Roman civil law passed into the
French civil law as well as that of Spain. Early in the 19th century,
two eminent American jurists, Story and Kent, at about the same time
took both the riparian name and the riparian doctrine from the French
law and introduced them into the Atlantic states. Thereafter, in 1849,
this doctrine became definitely a part of the English common law,
chief reliance being placed by the English court on these American
authorities.10
3) Having become a part of the common law of England, Western
states that adopted the common law adopted by virtue thereof the
riparian doctrine of rights in watercourses, in the absence of existing

"The Nevada Supreme Court recognized the riparian doctrine for thirteen years, but over-
ruled the earlier case and repudiated the doctrine completely in 1885: Vansickle v. Haines, 7
Nev. 249, 256-257, 260-265 (1872); Jones v. Adams, 19 Nev. 78, 84-88, 6 Pac. 442 (1885).
SSee Conflict between Rights Based on Landownership and Appropriative Rights, below.
*Davenport, Riparian vs. Appropriative Rights: The Texas Experience, PBoC. WATER LAW
CONFERENCES, Univ. of Texas, 138-168 (1952, 1954); Mann, Riparian Irrigation Rights as De-
dared and Enforced by the Courts, and Protected by the Statutes of Texas, Id. at 169-187; Mod
v. Boyd, 116 Tex. 82, 107-108, 286 S.W. 458 (1926).
*Clough v. Wing, 2 Ariz. 371, 381, 17 Pac. 453 (1888); Snow v. Abalos, 18 N.M. 681, 693,
140 Pac. 1044 (1914).
"Wiel, Waters: American Law and French Authority, 33 HAyv. L. REV. 133 (1919).









SYMPOSIUM ON WATER LAW


or subsequent constitutional or statutory provisions repudiating that
doctrine or court decisions holding that it was not a part of the state
law.
Origin of the appropriation doctrine.-The practice of appro-
priating water is traceable chiefly to local customs and regulations de-
veloped on public lands, which eventually, by both statutes and court
decisions, were crystallized into acknowledged doctrine and formal
procedures applicable to both public and private lands. The procedures
and the doctrine as now recognized in the West stem from three gen-
eral and, for the most part, probably unrelated movements, as follows:
1) In certain portions of the Southwest, according to the courts
of Arizona and New Mexico, exclusive rights to the use of water for
lands regardless of contiguity to streams could be obtained by appro-
priation prior to American sovereignty.1 One school of thought insists
that this system was brought by the Spaniards from Europe, where it
had been a part of the civil law of Rome.2 Another equally insistent
view is that any such exclusive rights arose only by way of grants, or
as the result of a local custom which would be prescription."1 What-
ever the source and exact nature of this practice, it was followed by
Spanish and Mexican settlers in Arizona, New Mexico, and parts of
Colorado. In the first two states, at least, it undoubtedly guided the
development of the states' water rights laws.14
2) The Mormons, who first entered Utah in 1847, colonized that
region under a strong and effective church leadership. Settlements were
usually made close to streams where they left the mouths of canyons,
from which the first short ditches diverted water for domestic use,
watering livestock, and irrigation of crops. This great area was not
only unoccupied, but was desert land belonging to Mexico in 1847 and
ceded to the United States by the Treaty of Guadalupe Hidalgo, which

"Clough v. Wing, 2 Ariz. 371, 380-381, 17 Pac. 453 (1888); Boquillas Land & Cattle Co.
v. St. David Cooperative Commercial & Development Assn., 11 Ariz. 128, 138-139, 89 Pac. 504
(1907); United States v. Rio Grande Dam & Irr. Co., 9 N.M. 292, 305-307, 51 Pac. 674 (1898).
REPORT AND RECOMMENDATIONS OF COMMITTEE OF NATIONAL RECLAMATION ASSOCIATION,
PRESERVATION OF INTEGRITY OF STATE WATER LAWS 165-168 (1943).
Mann, op. cit. supra note 8 at 172.
"The Arizona Supreme Court observed that in certain fundamental respects the law of that
jurisdiction on the appropriation of water differed fundamentally from that of others in the
West with the single exception of New Mexico, which had had the same early water-law history:
Slosser v. Salt River Valley Canal Co., 7 Ariz. 376, 385-386, 65 Pac. 332 (1901); Tattersfield v.
Putnam, 45 Ariz. 156, 168, 41 P.2d 228 (1935). Therefore, decisions of courts of other states
and territories, the water laws of which had originated differently, were not controlling in
Arizona, and were not even authoritative in the decision of questions arising wholly under
Arizona's own peculiar statutes.


1957]









KANSAS LAW REVIEW


was proclaimed July 4, 1848.16 Mexican law, however, had nothing to
do with either the system of land titles or the system of water titles
developed by the Mormons. With respect to land, the church took pos-
session of the country and sanctioned the early allotments of parcels of
land to church members who settled in the selected communities.
Pending acquirement of formal land titles from the United States
Government, these early possessory titles thus sanctioned by the church
were recognized by the State of Deseret and the Territory of Utah.16
With respect to water, the principle was early established that those
who first made beneficial use of the water should be entitled to con-
tinued use in preference to all later comers. This principle originated
in custom, under church leadership, and was eventually sanctioned by
the legislature and the courts."
3) The discovery of gold in the Sierra foothills of California in
January, 1848, was destined to have a profound effect on the develop-
ment of water law in the West." Much of the gold was extracted from
the ground by processes in which the use of water was essential; hence,
to the miner, water was as important as his mining claim. As in the
case of Utah, this area then belonged to Mexico and was ceded to the
United States by the Treaty of Guadalupe Hidalgo, which was pro-
claimed less than six months after gold was discovered. Likewise, as
with Utah, there was no organized government in the early years and
little or no law except that made by the local persons concerned, who in
this case were the miners. These miners took possession of land, gold,
and water, and established and enforced local rules and regulations
based on priority of discovery and diligence in working the claims and
in diverting and using the water. Trespassers on the public lands
though they were at first, the federal government did nothing to dis-
courage these gold seekers, but on the contrary silently acquiesced in
their occupation of the land for mining and in their use of water until
Congress in 1866 formally recognized rights of prior appropriation that
had vested and accrued pursuant to local customs, laws, and decisions
of courts."
"9 STAT. 928 (1848).
SHutchins, Mutual Irrigation Companies in Utah, UTAH AGR. EXPT. STA. BUL. 199, 9-16
(1927).
4 KINNEY, A TREATISE ON THE LAW OF IRRIGATION AND WATER RIGHTS, 2055 and 2059
(2d ed. 1912).
I WEIL, WATER RIGHTS IN THE WESTERN STATES, 66-99 (3d. ed. 1911).
"14 STAT. 253, 9 (1866), amended 16 STAT. 218 (1870). See also 19 STAT. 377 (1877)
43 USC 321 (1953); Atchison v. Peterson, 87 U.S. 507, 512-514 (1874); Basey v. Gallagher,
87 U.S. 670, 681-684 (1875); Jennison v. Kirk, 98 U.S. 453, 455-462 (1879); Broder v. Water
Co., 101 U.S. 274, 275-276 (1879).


[Vol. 5








SYMPOSIUM ON WATER LAW


In 1872-nearly a quarter-century after the discovery of gold-the
California legislature for the first time specifically authorized the
appropriation of water.20 This was done in a short statute, which essen-
tially codified principles and practices that had been developed in the
various mining camps. Various other Western states and territories
likewise enacted short statutes authorizing the appropriation of water
under much the same procedure, which usually included posting a
notice at the point of diversion, filing a copy in the county records, and
completing the appropriation with due diligence. Some of these stat-
utes, as in the case of California, were preceded by the prevalence of
local customs which they in effect codified. In Kansas, however, the
state supreme court notes an exception. The court observed, in Clark
v. Allaman,1 that prior to the Kansas act of 1886 there was no recog-
nition in this state of rights to use of water by priority of possession,
local customs to that effect being invalid. Therefore, prior to that en-
actment, there could be in Kansas no vested and accrued water rights
to be protected by the Congressional legislation of 1866 and 1870.
The California gold miners evolved their system of prior appropria-
tion independently of the Spanish-Mexican and Mormon developments.
Although details varied from one mining camp to another, the essen-
tial features were of fairly uniform application throughout the mining
area. These features comprised priority in time of initiating the appro-
priation, notice of intention to divert a specific quantity of water, diver-
sion and application of the water to a beneficial purpose, diligence in
constructing works and completing the appropriation, and continued
exercise of the appropriative right thereafter without cessation of use
for unreasonable periods. The appropriative system thus evolved in
California was adopted in the other mining states and territories, and
it spread to still other western jurisdictions. Undoubtedly the major
contribution to the so-called arid region doctrine of appropriation was
made by these gold miners. What inspired them to develop these
principles ?
Two writers-one in 1884 and the other a half-century later-have
pointed out that the regulations and customs established in California
by the gold-seekers were strikingly characteristic of much earlier

SCAL. Civ. CODE, S~ 1410-1422 (1872).
a 71 Kan. 206, 240-241, 80 Pac. 571, 583 (1905).


1957]








540 KANSAS LAW REVIEw [Vol. 5

mining enterprises in the Old World.22 The earlier writer, Charles
H. Shinn, compared the principle of "Mining Freedom" of the Ger-
manic and Cornwall miners with that of the modern mining camps in
the Western states and territories. In 1935 Professor William E. Colby,
of the University of California, discussed the right of free mining and
free use of flowing water for mining purposes as a part of the customs
of Germanic miners in the Middle Ages, and their similarity to the
Calfornia conditions and practices. He emphasized, with many ex-
amples, the widespread existence of the doctrine of prior appropriation
in the important mining regions of the world. This mining freedom
spread from middle Europe to other countries and their colonies. In
view of all this, and of the further fact that the gold-seekers came to
California from many countries, it is not at all improbable that they
brought with them some knowledge of the old Germanic customs and
built upon these ideas in the new environment.
Applicability of doctrines to watercourses in the ground.-It is de-
clared in many jurisdictions that the law of watercourses applies to
streams buried in the ground as well as to those on the surface.28 This
holds true equally for definite underground streams not connected
with surface watercourses and for underflows of surface streams.

Percolating Ground Waters'
Although the East has early cases dealing with rights and claimed
rights to the use of percolating ground waters, by far the greatest de-
velopment in both judicial and statutory law has been in the West,
since the turn of the century.
The several doctrines relating to percolating waters are divided into
two general groups- 1) those based on location of land with refer-
ence to the ground-water supply, and 2) the doctrine of prior appro-
priation.
Landownership doctrines comprise 1) the English or common-law
rule of absolute ownership, the origin of which is usually attributed to
an English case decided in 1843, although Wiel points out that an

SSHINN, MINING CAMPS, A STUDY IN FRONTIER GOVERNMENT, 11-35 (1948; originally pub-
lished 1885); Colby, The Freedom of the Miner and Its Influence on Water Law, from LEGAL
EssAYs, IN TRIBUTE TO ORRIN KIPP McMURRAY 67-84 (1935).
s NATIONAL RESOURCES PLANNING BOARD, SUBCOMMITTEE ON STATE WATER LAW, STATE
WATER LAW IN THE DEVELOPMENT OF THE WEST 70-71, 76, 118-127 (1943).
mId. at 70-83, 118-127 (1943). For recent statutory developments, see Hutchins, Trends in
the Statutory Law of Ground Water in the Western States, 34 Tax. L. REV. 157-191 (1955).


*1









SYMPOSIUM ON WATER LAW


earlier American decision had reached much the same result;"2 2) the
American rule of reasonable use, developed in this country for the pur-
pose of giving the owner of overlying land some protection against
unreasonable uses of the common water supply by his neighbors, to
his own injury; and 3) the doctrine of correlative rights, which is
not always distinguishable in the western decisions from the rule of
reasonable use, and which, during the present century, has been de-
veloped comprehensively only in California. As noted in the latter part
of this article, the English rule was formerly recognized in Kansas.
Appropriation of ground waters is authorized by statute in eleven
of the seventeen Western states, including Kansas. The general prin-
ciples of the doctrine as developed with respect to watercourses are
followed in these statutes, with some variations made necessary by rea-
son of differences in physical characteristics of the water supplies.
Statutes in three additional Western states provide some measure
of supervision over the use of percolating waters, but not on an appro-
priative basis.

III. OTHER WATER SUPPLIES
Diffused Surface Waters
Artificial changes in the flow.-A large body of case law deals with
the obstruction, repulsion, and riddance of diffused surface waters.
Much has been written in texts, articles, and decisions of courts about
the common-law rule, the common-enemy rule, and the civil-law rule.
In some jurisdictions, the legislatures have spoken on the matter of
making artificial changes in the flow of such waters. This is the situa-
tion in Kansas.26
Thus, in Kansas, the common-law rule formerly obtained.21 Under
that rule, said the state supreme court in 1881, "The lower estate owes
no duty to the higher, and the owner of each may use or abandon sur-
face water as he pleases."28 However, in 1911, the legislature enacted
"2 WIEL, Op. cit. supra note 18 at S 1039. Wil says that in 1843 the law of percolating
waters was first separately considered in the English case of Acton v. Blundell, 12 Mees. & W.324
(1843). But he goes on to say that the American case of Greenleaf v. Francis, 18 Mass. (Pick.)
177 (1836), decided before Acton v. Blundell, had reached much the same result.
The relationship of diffused surface waters to overflows from streams has also been litigated
in Kansas, but that subject will not be discussed here.
'Atchison, Topeka & Santa Fe Ry. v. Hammer, 22 Kan. 763, 765 (1879); Kansas City &
Emporia R.R. v. Riley, 33 Kan. 374, 380, 6 Pac. 581, 584 (1885); Chicago, Kansas City &
Nebraska Ry. v. Steck, 51 Kan. 737, 741, 33 Pac. 601, 602 (1893); Singleton v. Atchison,
Topeka & Santa Fe Ry., 67 Kan. 284, 287-291, 72 Pac. 786, 787, 788 (1903).
Gibbs v. Williams, 25 Kan. 214, 216 (1881).


1 __


I


1957]








542 KANSAS LAW REVIEW [Vol. 5

a statute applicable only to agricultural lands and highways outside of
cities, which made it unlawful for a landowner, by artificial means, to
obstruct or collect and discharge with increased force and volume the
flow of diffused surface water to the damage of an adjacent owner.29
This, said the supreme court, substituted the civil law for the common
law0--a change which it was competent for the legislature to make.3
Rights of use.-Aside from various statements, largely dicta, to the
effect that one has the right to make use of the diffused surface water
that occurs on his land, there is very little good authority, in either the
East or the West, as to rights of use of such waters. The question would
be important in situations in which high-level uses of diffused waters
by such landowners are shown to impair substantially the usefulness
of stream flows, to which the diffused waters are physically tributary,
for those who have been putting the stream waters to beneficial use.32
Thus, in Kansas, in a case that involved the obstruction of the flow
of diffused surface water rather than its use, the supreme court stated
that the landowner has the right to use and accumulate all the water
falling upon his own land." Several years later, the principle was re-
stated by dictum."
The closest approach to an open conflict, in an appellate court, be-
tween stream appropriators and users of tributary diffused surface
waters that has come to the writer's attention is in a Montana case
decided in 1950.3 Although the depressions and shallow basins in
which the diffused waters were collected were located in the same
watershed as the stream out of which plaintiffs had made their appro-
priations, there was no substantial evidence to show that even if all
the defendants' dams and dikes were removed, the diffused surface
waters would reach the plaintiffs' reservoirs. Hence plaintiffs had not
proved injury to their water rights. But the court went on to say that
the defendant landowners had the right to make these impoundings
on their own lands, and that in the absence of a watercourse having
a marked channel and defined banks through which the waters might

Kans. Laws 1911, ch. 175.
"Dyer v. Stahlhut, 147 Kan. 767, 770, 78 P.2d 900, 902 (1938).
SMartin v. Lown, 111 Kan. 752, 754-755, 208 Pac. 565, 566 (1922); Skinner v. Wolf, 126
Kan. 158, 160-161, 266 Pac. 926, 927, 928 (1928).
SOp. cit. supra note 23 at 60-65.
"Gibbs v. Williams, 25 Kan. 214, 217 (1881).
U Kansas City & Emporia R.R. v. Riley, 33 Kan. 374, 380, 6 Pac. 581, 584 (1885).
Doney v. Beatty, 124 Mont. 41, 49-50, 220 P.2d 77 (1950).




L








SYMPOSIUM ON WATER LAW


reach plaintiffs' lands, the latter could not make a valid appropriation
of such diffused waters.
Spring Waters"3
The immediate source of a spring is ground water; but on emerging
from the earth and leaving the immediate area of the spring, the water
assumes some other status, depending on its behavior. It may spread
vagrantly over the ground as diffused surface water; or the flow may
concentrate in a definite channel and so become part of a watercourse;
or the spring water may promptly sink into the ground and resume its
former status as ground water.
Conflicts over rights to the use of spring waters may arise either
1) between the owner of the land on which the spring rises and
parties who intercept the ground waters that feed the spring, or 2)
between the spring owner and parties who claim rights in the water
that under natural circumstances flows away from his spring.
Conflicts over sources of supply.-Consider the first group of con-
flicts involving sources of springs. If the source is percolating water,
rights of use generally are governed by the law of percolating waters
in the particular jurisdiction. Under the English doctrine, the owner
of the spring would have no right of action against an upper land-
owner who, on his own land, cuts off the flow of percolating water to
the spring; under the doctrine of correlative rights, the owner of the
spring and the upper landowner would have reciprocal rights in the
source; under the appropriation doctrine, the respective rights would
be governed by priority of appropriation. On the other hand, if the
source is a definite underground stream, then-to the extent that a
rule has been stated-relative rights would be governed by the law of
watercourses.
Conflicts over the spring water.-Historically, with respect to the
second group of conflicts between spring owners and opposing claim-
ants, springs have been divided into two general classes-1) those that
do not flow from the tracts of land on which they rise, and 2) those
that form or are tributary to watercourses.
Springs that do not flow from the land of origin either on or under
the surface.-Statutes of some states dedicate all waters within the state
to the use of the public, subject to appropriation; some others specifi-
cally subject spring waters to appropriation; a few others give the land-
3 Op. cit supra note 23 at 66-68, 112-117.


1957]








544 KANSAS LAW REVIEW [Vol. 5

owner first preference if the water is capable of being used on his land.
Generally, in this group of cases, the opposing claimants are seeking
to establish rights of use as against the landowner by grant, prescrip-
tion, or appropriation. If they fail to do so, the owner of the land or-
dinarily would have the exclusive right to use such spring water that
does not leave his land under natural circumstances. In such a case,
remarked the Kansas Supreme Court fifty years ago: "That percolating
waters, such as these springs are, belong to the owner of the land as
much as the land itself, admits of no doubt."31
Springs tributary to watercourses.-The general rule is that in de-
termining rights of use, a spring that contributes to the supply of a
watercourse is a part thereof. If the law of riparian rights prevails in
the jurisdiction, the owner of the land on which the spring rises has
no exclusive right to the use of the water; his rights are those of a
riparian owner and are correlative with the rights of other owners of
land contiguous to the watercourse. If the appropriation doctrine
applies, then any rights that the landowner acquires in the spring waters
must be obtained by appropriation, subject to all prior appropriative
rights on the watercourse which the springs supplies.
The Supreme Court of Kansas follows the general rule. The court
held in 1906, in a case in which the watercourse had its origin in a
spring, that the watercourse becomes such at the point at which the
spring water comes to or collects on the surface and flows therefrom
in a channel with well-defined bed and banks.38 And within the last
year, in a controversy between owners of land contiguous to a water-
course and the possessor of a tract containing a spring that was one of
the main sources of the watercourse-in which the right of appropria-
tion was not in issue-the court held that the relative rights of the
parties were those of upper and lower riparian owners."9
Salvaged and Developed Waters
Salvaged waters are parts of a stream or other water supply that are
saved from loss by reason of artificial work, and thereby are retained
within the stream and so made available for use. Developed waters are
new waters that are added to a stream or other source or area by means
of artificial work. Although the physical situations and the processes

SJobling v. Tuttle, 75 Kan. 351, 360, 89 Pac. 699, 704 (1907).
Rait v. Furrow, 74 Kan. 101, 106-107, 85 Pac. 934, 936 (1906).
SWeaver v. Beech Aircraft Corp., 180 Kan. 224, 303 P.2d 159 (1956); Note, 5 KAN. L. REV.
746 (1957).









SYMPOSIUM ON WATER LAW


differ, both salvaged and developed waters are made available as the
result of artificial work and artificial devices, and the legal principles
with respect to rights of use are similar.
Salvaged water.-The rule expressed in various cases is that the right
to use that portion of the flow of a stream salvaged, or saved from loss,
by means of artificial improvements accrues to the one who makes
the improvements, provided that in so doing he does not infringe the
prior rights of others.40 The reason given by the Idaho Supreme Court
for the rule is that there is no incentive for the accomplishment of
such saving unless those who do the work reap the benefit of their
efforts and so obtain the use of the water they save."
Such saving may be effected by conveying the natural flow of a
stream through a pipeline past a section of the stream bed in which
considerable loss naturally occurs. If in such instance a downstream
user continues to receive the quantity of water to which he is entitled,
he may not complain of an upstream use which does not impair the
quality or quantity of the water.42 But the principle does not extend
to an asserted increase in water supply occasioned by the mere removal
of obstructions in the channel, which simply accelerates the flow.4 To
avoid possible infringement of prior rights, claimants of salvaged water
must show that the increase which they bring about in the surface flow
would not, if left alone, reach the prior downstream users by subflow."
The Utah Supreme Court held that a trial court, in decreeing the right
of use of conserved water to the salvager without requiring him to com-
ply with the law of appropriation, was in error."
Developed water.-The general rule governing rights to the use of
salvaged water applies to the right to use new water added to a stream
by reason of artificial improvements, and for the same reasons.
Rights of use that attach to a stream are not impaired if a party
retakes from the channel the quantity of water he has developed, which
does not constitute any part of the natural flow of the stream." As

Santa Cruz Res. Co. v. Rameriz, 16 Ariz. 64, 70-71, 141 Pac. 120 (1914); Big Cottonwood
Tanner Ditch Co. v. Shurtliff, 56 Utah 196, 204-205, 189 Pac. 587 (1919, 1920). See Tonkin v.
Winzell, 27 Nev. 88, 99-100, 73 Pac. 593 (1903).
Reno v. Richards, 32 Idaho 1, 13, 178 Pac. 81 (1918).
"Pomona Land & Water Co. v. San Antonio Water Co., 152 Cal. 618, 622-624, 93 Pac. 881
(1908).
State ex rel. v. District Court, 56 Mont. 578, 581, 185 Pac. 1112 (1919).
Hill & Gauchay v. Green, 47 Idaho 157, 158-160, 274 Pac. 110 (1928).
Eardley v. Terry, 94 Utah 367, 379 77 P.2d 362 (1938).
*L. Mini Estate Co. v. Walsh, 4 Cal.2d 249, 254, 48 P.2d 666 (1935); Rabido v. Furey, 33
Idaho 56, 61, 63, 190 Pac. 73 (1920); Smith v. Duff, 39 Mont. 382, 391, 102 Pac. 984 (1909).


1957]









KANSAS LAW REVIEW


against holders of prior rights, the right to retake developed waters
from the stream belongs to those who developed them.47 However,
water that is artificially drained into a stream from irrigated lands or
from a swamp, but which would have found its way into the stream
without the drain-the only purpose of which is to facilitate movement
of the surface or seepage waters-is not developed water and cannot
be claimed as such.4
Burden of proof.-With respect to either salvaged water or de-
veloped water, the burden of proof rests on the claimant to show, by
competent evidence, that he is not intercepting a supply of water to
which others are rightfully entitled.49
Waste, Seepage, and Return Waters
These waters are closely related and their classifications overlap.
For the purpose of this discussion, waste includes water either
purposely released or leaking from water works, or flowing from
irrigated lands either on the surface or seeping under it; seepage com-
prises waste waters moving through the soil and entering stream
channels or appearing elsewhere on the surface; and return waters are
waters diverted from and returning to a stream, or that would do so
if not intercepted by some obstacle. Thus return waters include both
waste and seepage waters.50
Waste and seepage waters.-In the absence of grant, prescription,
or estoppel, the general rule is that the owner of land on which waste
and seepage waters originate, and from which they flow to other lands,
is not obliged to continue the conditions that lead to the waste and
seepage supply. If he has never released title to the corpus of water
diverted in the exercise of his own water right, the landowner may
recapture and reuse the water before it has passed from the boundaries
of his land. Particles of water discharged without intent to recapture

Ripley v. Park Center Land & Water Co., 40 Colo. 129, 133, 90 Pac. 75 (1907); Keeney v.
Carillo, 2 N.M. 480, 493 (1883).
"Union Central Life Insurance Co. v. Albrethsen, 50 Idaho 196, 199-200, 202-204, 294 Pac.
842 (1930); West Side Ditch Co. v. Bennett, 106 Mont. 422, 433, 78 P.2d 78 (1938); Jones v.
Warmsprings Irr. Dist., 162 Ore. 186, 202, 91 P.2d 542 (1939).
'Hill & Gauchay v. Green, 47 Idaho 157, 160, 274 Pac. 110 (1928); Kramer v. Deer
Lodge Farms Co., 116 Mont. 152, 173, 151 P.2d 483 (1944).
SFor discussions of laws relating to rights of use of these various classes of water, see
NATIONAL RESOURCES PLANNING BOARD, SUBCOMMIITEE ON STATE WATER LAW, STATE WATER
LAW IN THE DEVELOPMENT OP THE WEST 23-36, 49-52 (1943); HUTCHINS, SELECTED PROBLEMS
IN THE LAW OF WATER RIGHTS IN THE WEST 361-371, 375-378 (1942) (hereafter cited as
SELECTED PROBLEMS); THE NEVADA LAW OP WATER RIGHTS 55-58 (1955); THE NEW MEXICO
LAW OF WATER RIGHTrrs 44-46 (1955);, THE CALIFORNIA LAW OF WATER RIGHTS, 387-401 (1956);
THE IDAHO LAW OF WATER RIGmrS 90-95 (1956).


U


[Vol. 5









SYMPOSIUM ON WATER LAW


them, however, are thereby abandoned and are no longer the property
of the original user.
Waste and seepage waters that have left the control of the original
water user are generally subject to appropriation by the first taker
(except in Colorado, as noted below in discussing return waters). As
between opposing claimants of rights in a supply of waste water, prior-
ities usually govern. But as against the original user, mere use of waste
water establishes no right. Hence, an appropriation of waste water
differs from an appropriation of the natural flow of a stream in that
the claimant of the former "acquired no such usufruct right in the
water as to entitle him to compel the continuation of the condition
furnishing him with water.""5
A reference to rights of use of seepage waters in Kansas appears in a
statute originally enacted in 1891.62 This statute provides that the pro-
prietor of any lands saturated by seepage waters from water works
may drain the water "into any natural stream, arroyo, or watercourse,
or may at his election convey such waters to other lands or places
whatsoever, and apply the same to domestic, agricultural, manufactur-
ing or other purposes in his pleasure."
Return waters.-Return flow from irrigation is a common phe-
nomenon in the West."3 In some cases, the water returns to the stream
from which originally diverted. In others, it results from the use of
foreign water-that is, water used in a watershed other than the one
in which the original stream diversion was made. Different rules of
law are applied in some states to these two classes of return water.
Consider first the situation in which the water returns to the stream
from which originally diverted. If in such instance the owner of the
land from which the return water flows is not asserting a right to
recapture it, such water on rejoining the stream becomes a part thereof,
not only physically, but also in legal contemplation. But an assertion
by the original appropriator of the right to recapture return flow after
it has left his lands and entered a watercourse raises difficult questions.
These involve, among others, abandonment of particles of water as
related to a claim of the right of future recapture and reuse; effects of

"Ryan v. Gallio, 52 Nev. 330, 345, 286 Pac. 963 (1930).
"KAN. G.S. 1949, 42-353 and 42-354; originally enacted Laws 1891, ch. 133. Section 42-
354 provides that a right of way may be condemned for such purpose over intervening lands
of others.
SExamples on some important stream systems are described in Hutchins, Policies Governing
the Ownership of Return Waters from Irrigation, U.S. DEPT. AGR. TECH. BUL. No. 439 (1934).


1957]









548 KANSAS LAW REVIEW [Vol. 5

recapture on downstream users who have been depending on contin-
uance of the return flow in the stream; and substitution of return flow
for an additional diversion from the stream. Space is not available to
review these matters here, but a few salient points should be noted:
In several cases in the United States courts that involved the use of
return waters resulting from irrigation within Bureau of Reclamation
projects, the courts were satisfied that there had been no abandonment
by the United States of its claim to the reuse of such waters." In Colo-
rado, as a result of considerable litigation, there was developed the
principle that return water which under natural conditions would reach
a public stream must be regarded as a part of that stream from the
time it escapes from the works or lands of the original user; and that
the intent to recapture the return water, and diligence in effecting its
recapture, are not material.6 The courts of other states, in which these
questions have been litigated much less extensively than in Colorado,
have taken positions less extreme than in that state. In the cases in this
field that have reached the high courts, the circumstances have been
quite variable and-aside from general failure to follow the extreme
lead of Colorado-the decisions not numerous enough to justify the
statement of a prevailing rule or set of rules.
Return flow from foreign waters.-The decisions as to rights in the
return flow from waters brought to the area of use from another water-
shed, when released by the importing agency with no intent to recap-
ture it, are not in accord. Abandonments of such waters into a stream
have been variously held to have the following results: the waters be-
come a part of the stream and inure to the benefit of appropriators of
the natural flow in order of priority; they are subject to new appro-
priations independently of established appropriative rights; the first
person who can take them in any year may do so, but he cannot acquire
an exclusive right to take them in the following or any other year;
they are subject only to appropriation and not to riparian rights of con-
tigous lands.
"Ramshorn Ditch Co. v. United States, 269 Fed. 80, 83-87 (8th Cir. 1920); United States
v. Haga, 276 Fed. 41, 43-47 (D. Idaho, 1921); Ide v. United States, 263 U.S. 497, 505-507
(1924); United States v. Warmsprings Irr. Dist., 38 FSupp. 239, 242-244 (D. Oreg. 1940);
United States v. Tilley, 124 F.2d 850, 858-863 (8th Cir. 1941), certiorari denied, 369 U.S.
691 (1942).
'Fort Morgan Res. & Irr. Co. v. McCune, 71 Colo. 256, 261-262, 206 Pac. 393 (1922). In
this decision-from which two justices dissented, one of whom wrote a strong dissenting
opinion-the previous decisions of the Colorado Supreme Court on the general subject were
reviewed and the controlling principle was pointed up. See the opinion in Nevius v. Smith, 86
Colo. 178, 181-182, 279 Pac. 44 (1928, 1929).









SYMPOSIUM ON WATER LAW


With respect to rights of importers of foreign waters who wish to
recapture and reuse the return flow therefrom, the California courts
follow a liberal policy.6 They have held that the importing project not
only may reclaim the return flow from a watercourse within the project
boundaries, as against downstream appropriators, but that it may
provide by contract for recapture of the water from a stream channel
at a point outside the boundary as against claimants located between
the boundary and the canal of the contracting party. A few decisions
either favoring or rejecting claims of importers have been rendered in
some other states."

IV. ASPECTS OF THE RIPARIAN RIGHT

Accrual of the Right
Title to the riparian right of an owner of private land accrues when
title to the land passes from public to private ownership.66
By the Desert Land Act of 1877,"5 if not before, Congress separated
the land and the water on the public domain, so that a patent issued
thereafter for public lands in any desert land state or territory carried
with it, of its own force, no common-law riparian right.60 But the
power of the states to establish their own doctrines of water-rights law
was not curtailed. And so in California and South Dakota, the courts
hold that a grantee of riparian land that was acquired from the govern-
ment after the effective date of the Desert Land Act takes title to a
riparian right to whatever exent the doctrine applies under the laws of
the state;"6 in Oregon, that a riparian right for land so acquired ex-
tends to the use of water for domestic and stock-watering purposes

"Stevens v. Oakdale Irr. Dist., 13 Cal.2d 343, 350-353, 90 P.2d 58 (1939); Los Angeles v.
Glendale, 23 Cal.2d 68, 76-78, 142 P.2d 289 (1943); Haun v. De Vaurs, 97 Cal.App.2d 841,
844, 218 P.2d 996 (1950); Stevinson Water Dist. v. Roduner, 36 Cal.2d 264, 267-270, 223 P.2d
209 (1950).
SSee Miller v. Wheeler, 54 Wash. 429, 433-436, 103 Pac. 641 (1909); Galiger v. McNulty,
80 Mont 339, 357-358, 260 Pac. 401 (1927); Rock Creek Ditch & Flume Co. v. Miller, 93 Mont.
248, 258-268, 17 P.2d 1074 (1933); Allendale Irr. Co. v. State Water Conservation Board, 113
Mont. 436, 439, 449, 127 P.2d 227 (1942).
"McKinley Bros. v. McCauley, 215 Cal. 229, 231, 9 P.2d 298 (1932); Norwood v. Eastern
Oregon Land Co., 112 Ore. 106, 111, 227 Pac. 1111 (1924); Redwater Land & Canal Co. v.
Reed, 26 S.D. 466, 487, 128 N.W. 702 (1910); Mod v. Boyd, 116 Tex. 82, 107-108, 286 S.W.
458 (1926); In re Alpowa Creek, 129 Wash. 9, 13, 224 Pac. 29 (1924).
19 STAT. 377 (1877). 43 US.C. 5 321 (1953).
California Oregon Power Co. v. Beaver Portland Cement Co., 295 U.S. 142, 155-158, 162
(1935).
Williams v. San Francisco, 56 Cal.App.2d 374, 378-381, 133 P.2d 70 (1942), hearing
denied by California Supreme Court (1943), cert. denied, 319 U.S. 771 (1943); Platt v.
Rapid City, 67 S.D. 245, 248-250, 291 N.W. 600 (1940).


1957]









550 KANSAS LAW REVIEW [Vol. 5

only;62 and in other States in which the riparian doctrine has been
completely repudiated, that no riparian right to the use of water accrues
for any purpose whatsoever.
Nature and Extent of the Right
Property characteristics.-Under the common law, as noted by the
Kansas Supreme Court in an early case, the right of an owner of land
abutting on a stream to the flow of the water in its natural channel is
an unquestioned property right.63 Not only is it a right of real property,
it is part and parcel of the soil.64 But the statement, sometimes made,
to the effect that the right is inseparably annexed to the land is not
correct, for as noted below, there are ways in which it can be separated
from the land.
Measure of the right: As against other riparian owners.-The gen-
eral rule is that the riparian right, in relation to the rights of other
proprietors, is not measured by a specific quantity of water. The right
of the riparian owner is said in some of the cases to be analogous to
that of a tenant in common, not a separate or severable estate.65 In the
nature of things, owing to the variability of stream flow, and needs of
other riparian owners, it contemplates a right to use a variable quan-
tity of water.6" What is a reasonable quantity of water to allocate to a
riparian owner under a right which he shares reciprocally with other
owners varies not only with the circumstances of each case, but also
from year to year and from season to season. Hence a decree of appor-
tionment of water among riparian proprietors on a percentage or pro-
portional basis, if feasible under the circumstances of the particular
case, is preferable.6
In 1949 the Kansas Supreme Court discussed the two theories under

"Hough v. Porter, 51 Ore. 318, 383-407, 95 Pac. 732 (1908), 98 Pac. 1083 (1909), 102
Pac. 728 (1909). The Oregon water code of 1909 limited riparian rights to the extent of actual
application of water to beneficial use prior to the enactment, as noted hereinafter in the discus-
sion of conflicts between riparian and appropriative rights. Literally, this would apply to
domestic and stock-water rights as well as to others, but such rights have been adjudicated on
various streams where the stock drink directly from the stream. See Hutchins, The Common-
Law Riparian Doctrine in Oregon: Legislative and Judicial Modification, 36 ORE. L. REv. 193
(1957).
"Emporia v. Soden, 25 Kan. 588, 604, 37 Am.Rep. 265 (1881).
'Fall River Valley Irr. Dist. v. Mt. Shasta Power Corp., 202 Cal. 56, 65, 259 Pac. 444
(1927); Smith v. Miller, 147 Kan. 40, 42, 75 P.2d 273, 274 (1938); Frizell v. Bindley, 144 Kan.
84, 91, 58 P.2d 95, 99 (1936); Stenger v. Tharp, 17 S.D. 13, 23-24, 94 N.W. 402 (1903);
Parker v. El Paso County W. I. Dist. No. 1, 116 Tex. 631, 642-643, 297 S.W. 737 (1927).
SState ex. rel. v. Davis, 116 Ore. 232, 236, 240 Pac. 882 (1925); Seneca Consolidated Gold
Mines Co. v. Great Western Power Co., 209 Cal. 206, 219-221, 287 Pac. 93 (1930).
"In re Deschutes River and Tributaries, 134 Ore. 623, 704-705, 286 Pac. 563, 294 Pac. 1049
(1930).
"Prather v. Hoberg, 24 Cal.2d 549, 559-560, 150 P.2d 405 (1944).









1957] SYMPOSIUM ON WATER LAW 551

which the riparian doctrine had been applied-the natural flow theory,
and the reasonable use theory."s Statements in some of the decisions
of this court give color to recognition of the theory of natural flow
without diminution or alteration,69 but these statements were impliedly
if not directly limited by statements in other cases, decided during the
same general period, that recognized the right of reasonable use by
the riparian proprietor.70 The reasonable use theory was definitely
favored in Heise v. Schultz, supra, decided in 1949, the court stating
that that theory prevailed in the great majority of the states in which
the common-law doctrine had been applied. Certainly, it has prevailed
in the Western states that have recognized the riparian doctrine.71
Under the reasonable use theory, the riparian owner is entitled to
some of the natural flow, but his right of possession and use of the
water does not begin until the water actually reaches his riparian land
and lasts only so long as it is flowing by or across his land.72 He has no
concern with any other person's diversion or use of the water after it
has passed the lower boundary of his own land, and so "it is apparent
that a riparian owner is not injured by a diversion, lawful or unlaw-
ful, which is below both his own land and his own point of diver-
sion.""8
The problem of apportioning water among riparian owners differs
considerably from that of dividing water among appropriators at a
particular time, where each appropriative right relates to a definite
quantity of water, for a definite purpose, and has a specific date of
priority. However, apportionments among riparian proprietors have
been made. This has been done, not according to any commonly recog-
nized formula-for there is none-but with a view of dividing the
Heise v. Schulz, 167 Kan. 34, 41-43, 204 P.2d 706 (1949).
"Shamleffer v. Council Grove Peerless Mill Co., 18 Kan. 24, 31, 33 (1877); Dougan v.
Board of County Commissioners, 141 Kan. 554, 562, 43 P.2d 223, 227 (1935); Durkee v. Board
of County Commissioners, 142 Kan. 690, 693-694, 51 P.2d 984, 986 (1935); Frizell v. Bindley,
144 Kan. 84, 91-92, 58 P.2d 95 (1936).
"Emporia v. Soden, 25 Kan. 588, 606, 37 Am. Rep. 265 (1881); Campbell v. Grimes, 62
Kan. 503, 505, 64 Pac. 62, 63 (1901); Clark v. Allaman, 71 Kan. 206, 241, 245, 80 Pac. 571,
584 (1905); Wallace v. Winfield, 96 Kan. 35, 40, 149 Pac. 693, 695 (1915); Wallace v. Win-
field, 98 Kan. 651, 653-654, 159 Pac. 11, 13 (1916); Atchison, Topeka & Santa Fe Ry. v.
Shriver, 101 Kan. 257, 258, 166 Pac. 519 (1917). And seethe syllabus by the court in Frizell
v. Bindley, 144 Kan. 84, 58 P.2d 95 (1936).
~In Turner v. James Canal Co., 155 Cal. 82, 94-95, 99 Pac. 520 (1909), the California
Supreme Court stated that the "alleged common-law rule" to the full flow of the stream in its
natural course through his land "is evidently not suited to the conditions of a dry climate such
as we have in this state."
"Miller & Lux v. Enterprise Canal & Land Co., 169 Cal. 415, 441, 147 Pac. 567 (1915).
Upper riparian proprietors "lost all property in the water when it left their land."-Clark v.
Allaman, 71 Kan. 206, 245-246, 80 Pac. 571 (1905).
Holmes v. Nay, 186 Cal. 231, 234-237, 242, 199 Pac. 325 (1921).









KANSAS LAW REVIEW


available water supply as equitably as possible among those riparian
owners who desire to use it.7' The decree of apportionment is binding
on the parties while it remains in effect, which it does as long as the
conditions on which it is based remain substantially unaltered; but in
a subsequent proceeding the decree may be modified if the conditions
have changed sufficiently to warrant it.7
Measure of the right: As against appropriators.-The adjustment of
conflicting water rights under a dual system that accords rights of
reasonable beneficial use to riparian owners and limits them to that,
while allowing appropriators to acquire equally valid rights to the
surplus above the reasonable requirements of riparians, has been de-
veloped more extensively in California than elsewhere in the West.
In that state, in contests between parties who claim under opposing
doctrines, the riparians must first prove quantitatively their reasonable
beneficial needs, after which the burden is on the intending appro-
priators to show that there is a surplus in the water supply available
for their use.76
Riparian Lands and Proprietors
Lands.-The California Supreme Court holds that the extent of
lands having riparian status is determined by three criteria: 1) except
in certain cases of subdivision, the land must be contiguous to the
stream; 2) the land must lie within the watershed of the stream; and
3) the riparian right extends only to the smallest tract held under one
title in the chain of title leading to the present owner.77
1) The requirement that lands must abut upon the stream channel
is fundamental.8" The very word "riparian," of Latin derivation, per-
tains to the bank of a river, lake, or tidewater, and the right to take the
water arises from the right of access. The requirement of contiguity has
been recognized, expressly or impliedly, in the Western states in which

As to desirable criteria, see Harris v. Harrison, 93 Cal. 676, 680-682, 29 Pac. 325 (1892);
Charnock v. Higuerra, 111 Cal. 473, 481, 44 Pac. 171 (1896); Wiggins v. Muscupiabe Land &
Water Co., 113 Cal. 182, 195, 45 Pac. 160 (1896); Southern California Investment Co. v. Wil-
shire, 144 Cal. 68, 71, 77 Pac. 767 (1904); Half Moon Bay Land Co. v. Cowell, 173 Cal. 543,
549-550, 160 Pac. 675 (1916); Herminghaus v. Southern California Edison Co., 200 Cal. 81,
117-118, 252 Pac. 607 (1926).
"See Los Angeles v. Baldwin, 53 Cal. 469, 470, 474-475 (1879); In re Silvies River, 115
Ore. 27, 132, 237 Pac. 322 (1925); Smith v. Stanolind Oil & Gas Co., 197 Okla. 499, 502, 172
P.2d 1002 (1946).
"Tulare Irr. Dist. v. Lindsay-Strathmore Irr. Dist., 3 Cal.2d 489, 535, 45 P.2d 972 (1935).
See the application of the principle as between appropriators of ground water in Pecos Valley
Artesian Conservancy Dist. v. Peters, 52 N.M. 148, 152, 154, 159, 193 P.2d 418 (1948).
"Rancho Santa Margarita v. Vail, 11 Cal.2d 501, 528-529, 534, 81 P.2d 533 (1938).
"See I WIas, op. cir. supra note 18 at 6 768.


[Vol. 5









SYMPOSIM ON WATER LAW


riparian rights have been adjudicated, and it was accepted in the Kansas
case of Clark v. Allaman.79
2) The great weight of authority in the Western states, including
Kansas, is that the land for which riparian rights are claimed must lie
within the watershed of the stream.80 The one exception that has been
noted is in an early Oregon case, to the effect that a person who owned
land contiguous to a stream was entitled to riparian rights even for
those portions of his land that lay beyond the watershed.81
3) The California rule as to chain of title is based on the premise
that the riparian right cannot extend to more land than that embraced
within the single original grant from the government-which might
have been a Spanish or Mexican grant of many thousands of acres, or
a patent from the United States Government for 640 acres or less. From
there it goes on to hold that in a subdivision of the original tract, back
parcels thereby cut off from contact with the stream lose their riparian
rights unless the rights are preserved in the conveyance; and that once
lost, such a riparian right can never be regained, even though back
parcels are again united in single ownership with those still abutting
on the stream. The Washington Supreme Court adopted the same
general principle.82 The inevitable result of this rule is that the area of
a tract of riparian land may be lessened from time to time, but it can
never be increased.
The premise that land for which riparian rights may be claimed
cannot exceed the original grant from the government was adopted in
Nebraska and Texas, but was rejected in Kansas."8
Who may exercise riparian rights.-Riparian rights may be exer-
cised by holders of possessory rights in riparian lands, as well as by
holders of title.8 But a trespasser, until he acquires title by adverse
possession, takes nothing from the rights of the rightful owner."

"71 Kan. 206, 244, 80 Pac. 571, 583 (1905).
"Rancho Santa Margarita v. Vail, 11 Cal.2d 501, 528-529, 534, 81 P.2d 533 (1938); Clark
v. Allaman, 71 Kan. 206, 244, 80 Pac. 571, 583 (1905); Osterman v. Central Nebraska Public
Power & Irr. Dist., 131 Neb. 356, 366-370, 268 N.W. 334 (1936); Sayles v. Mitchell, 60 S.D.
592, 594-595, 245 N.W. 390 (1932); Matagorda Canal Co. v. Markham Irr. Co., 154 S.W. 1176,
1180 (Tex.Civ.App., 1913). See Mally v. Weidensteiner, 88 Wash. 398, 402, 153 Pat. 342
(1915).
( Jones v. Conn, 39 Ore. 30, 39-41, 64 Pac. 855, 65 Pac. 1068 (1901).
'Yearsley v. Cater, 149 Wash. 285, 287-289, 270 Pac. 804 (1928).
"Crawford Co. v. Hathaway, 67 Neb. 325, 353-356, 93 N.W. 781 (1903); Watkins Land
Co. v. Clements, 98 Tex. 578, 585, 86 S.W. 733 (1905). The Kansas Supreme Court declined
to adopt a rule under which the extent of riparian lands would be governed by "the accidental
matter of governmental subdivisions of the land."--Clark v. Allaman, 71 Kan. 206, 245, 80 Pac.
571, 585 (1905).
Private lands: Heilbron v. Fowler Switch Canal Co., 75 Cal. 426, 433, 17 Pac. 535 (1888);


1957]









554 KANSAS LAW REVIEw [Vol. 5

A municipality may have riparian rights in a stream by virtue of
its ownership of riparian land. However, it has no greater and no lesser
right to the use of the water than a private owner of the same tradt
would have. High courts have decided, not only in Kansas but in other
states as well, that a city that owns some land contiguous to a stream
is not entitled, solely in the exercise of its riparian right, to divert water
from the stream for the purpose of selling it to all the nonriparian in-
habitants of the city, or to other persons remote from the stream."8 The
Kansas Supreme Court has also stated that a railway company, as a
riparian owner, had the right to make reasonable use of water for the
purpose of supplying its engines and operating its railroad, consistently
with the rights of other riparian owners.87

Waters to Which Riparian Rights Attach
The riparian doctrine has been held in Kansas to apply to the flow
of water in the natural channels of surface streams within the state.88
Riparian rights were also held to attach to a lake connected with a
watercourse, and to tributary springs.89 These holdings accord with the
general rule that riparian waters are those of watercourses, both sur-
face and subterranean, and other definite natural sources on the sur-
face.90 Riparian waters include navigable waters, subject to the public
easement of navigation; but aside from matters of the use of ice and
granting of power rights on navigable streams,"9 questions of naviga-
bility do not appear to have been involved in the Kansas riparian cases.

Heilbron v. Kings River & Fresno Canal Co., 76 Cal. 11, 16, 17 Pac. 933 (1888); Smith v.
Stanolind Oil & Gas Co., 197 Okla. 499, 501, 172 P.2d 1002 (1946). Public lands: Dripps v.
Allison's Mines Co., 45 Cal. App. 95, 100, 187 Pac. 448 (1919).
mAlta Land & Water Co. v. Hancock, 85 Cal. 219, 228-229, 24 Pac. 645 (1890). See Martin
v, British American Oil Producing Co., 187 Okla. 193, 196, 102 P.2d 124 (1940).
'"Emporia v. Soden, 25 Kan. 588, 607 (1881); Wallace v. Winfield, 96 Kan. 35, 38, 149
Pac. 693, 694 (1915); Antioch v. Williams Irr. Dist., 188 Cal. 451, 456, 205 Pac. 688 (1922);
Sayles v. Mitchell, 60 S.D. 592, 594-595, 245 N.W. 390 (1932). In Grogan v. Brownwood, 214
S.W. 532, 536-538 (Tex.Civ.App., 1919), the Texas Court of Civil Appeals held that by virtue
of riparian rights conveyed to the City of Brownwood, the city, as against claimants through
subsequent conveyances from the same grantors, had the right to supply its inhabitants with
water for domestic purposes.
"Atchison, Topeka & Santa Fe Ry. v. Shriver, 101 Kan. 257, 258, 166 Pac. 519 (1917).
SClark v. Allaman, 71 Kan. 206, 224, 229, 80 Pac. 571, 579 (1905). See Emporia v. Soden,
25 Kan. 588, 604 (1881).
"Dougan v. Board of County Commissioners, 141 Kan. 554, 562, 43 P.2d 223, 226 (1935);
Weaver v. Beech Aircraft Corp, 180 Kan. 224, 303 P.2d 159 (1956). 5 KAN. L. REV. 711
(1957).
"I WIEL, op. cit. supra note 18 at 5 723-729. As to the riparian owner's right to the
nminteance of lake levels, see Los Angeles v. Aitken, 10 Cal. App. 2d 460, 473-475, 52 P.2d 585
(1935), hearing denied by supreme court (1936); Elsinore v. Temescal Water Co., 36 Cal.
App.2d 116, 129-130, 97 P.2d 274 (1939).
SWood v. Fowler, 26 Kan. 682, 689-690 (1882); Johnston v. Bowersock, 62 Kan. 148, 161-
162, 61 Pac. 740, 744 (1900).








SYMPOSIUM ON WATER LAW


Purpose of Use of Water
In the development of the riparian doctrine, not only at the com-
mon law but in some of the Western states, natural uses of water were
those arising out of the necessities of life on the riparian land-house-
hold use, drinking, and watering domestic animals. For these purposes
the riparian owner might take from the stream all the water he actually
needed, regardless of the needs of downstream proprietors. Artificial
uses, on the other hand, were those that did not minister directly to
the necessities of life on the land, but were primarily for the purpose
of improvement, trade, or profit. For such business uses the riparian
owner could never take all the water to the exclusion of other riparian
owners-he could take only what was reasonable with due regard to
the like uses of others on the same stream.92 This distinction has been
observed in the Kansas decisions,93 as well as those of other Western
states. In California it has been held that the preference accorded to the
watering of domestic animals applies only to the number of animals
required for ordinary farm domestic uses, and that the watering of
commercial herds of stock is an artificial rather than a natural use of
water, thus being entitled to no preference.94
Purposes of using water on riparian lands that have been recognized
in the many California decisions include domestic use, both family
and commercialized, such as at resorts, motels, and auto camps; stock
watering; irrigation of both cultivated and uncultivated lands; genera-
tion of hydroelectric power; propulsion of mill machinery; floating
logs; recovery of gravel; mining; and preservation of attractive sur-
roundings and recreational facilities. The present attitude toward the
last-named purpose, which in the decided cases relates to group or com-
munity benefits rather than to the esthetic enjoyment of the individual
riparian householder, replaces a former policy of recognizing riparian
uses for utilitarian purposes only.95 The recognition by the Kansas Su-
preme Court of a riparian use for operating a railroad has been noted
above.9"
The courts of both California and Washington hold that storage

"Paraphrased from the discussion by 1 WIEL, op. cit. supra note 18 740, 743.
"Clark v. Allaman, 71 Kan. 206, 241-242, 80 Pac. 571, 583 (1905); Frizell v. Bindley, 144
Kan. 84, 93, 58 P.2d 95, 98 (1936). With respect to domestic uses, see also Emporia v. Soden,
25 Kan. 588, 606 (1881), and Heise v. Schulz, 167 Kan. 34, 41, 204 P.2d 706, 708 (1949).
Cowell v. Armstrong, 210 Cal. 218, 224-226, 290 Pac. 1036 (1930).
"HUTCHINS, THE CALIFORNIA LAW OF WATER RIGHTS 235-246 (1956).
Atchison, Topeka & Santa Fe Ry. v. Shriver, 101 Kan. 257, 258, 166 Pac. 519 (1917).


1957]








KANSAS LAW REVIEW


of water from one season to another is not a proper riparian use.7 It
constitutes an appropriation of the water, which may be exercised as
against a downstream riparian proprietor only if under the circum-
stances the appropriation is held to be the superior right. In Texas, how-
ever, the riparian owner may store water "so far as this may be done
consistently with the rights of other riparians, and upon such reason-
able terms as the Legislature may prescribe."9 An early Kansas statute,
still extant, provides that any person entitled to the use of water for
irrigation or other purposes may, at any time while entitled to the use,
"collect and store the same up for use presently thereafter."9'
Severance of Riparian Rights from Land
It has been written by a noted authority that: "Riparian rights can-
not be lost by abandonment."' As the riparian right is part and parcel
of the land, is not gained by use nor lost solely by disuse, and as its
exercise does not depend on the intent of the landowner, it is reason-
able to conclude that it cannot be abandoned separately from the land.
Nor is the riparian right subject to loss under the forfeiture statutes
of the Western states, which relate to appropriative rights. Later in this
article is noted the operation of statutes and court decisions relating
specifically to the preservation and loss of riparian rights within time
limits, or when confronted with demands of appropriators.
An effective way in which riparian rights can be and have been
severed from the land is by adverse use of water on the part of upstream
water users under all the circumstances necessary to establish pre-
scriptive rights against the lower landowners. In an address before the
American Bar Association at San Francisco in 1922, Chief Justice Shaw
of the California Supreme Court pointed out the signfiicance of this
legal principle in enabling irrigation development to proceed so ex-
tensively on nonriparian land notwithstanding the widespread exist-
ence of vested rights in that fundamentally riparian-doctrine state.'10
As a general rule, "prescription does not run upstream," because of
the fact that downstream diversions of water do not interfere with the

"Colorado Power Co. v. Pacific Gas & Electric Co., 218 Cal. 559, 564-565, 24 P.2d 495
(1933); Still v. Palouse Irr. & Power Co., 64 Wash. 606, 609, 117 Pac. 466 (1911).
"Chicago, R. I. & G. Ry. v. Tarrant County W. C. & I. Dist. No. 1, 123 Tex. 432, 448, 73
S.W2d 55 (1934).
SKAN. GS. 1949, 42-313; enacted Laws 1891, ch. 133.
S1 WIEL, o. Cit. supra note 18, $ 861.
m Shaw, The Development of the Law of Waters in the West. Published in the "The Re-
corder," San Francisco, August 10, 1922, pp. 11-12, at 12; 47 A.B.A. REP. 189-207, at 201;
10 CAL. L. REv. 443, at 455; 189 Cal. 779, at 791 (1922).


[Vol. 5









SYMPOSrIM ON WATER LAW


natural flow above and hence are seldom such as to give a cause of
action to the upstream proprietor. The Kansas Supreme Court has so
held.l02 In most cases in western high courts in which prescriptive
rights against upstream parties have been held to accrue, there has been
some actual trespass on the upstream lands or water works.'0
Some other points of prescriptive water rights law that have been
before the appellate courts of Kansas include the following: The bur-
den is on the one who asserts a right by prescription to establish all the
elements of prescriptive use; and to establish the right, the use must be
substantially the same as that required to obtain title to land by adverse
possession.'" Such a right cannot be based on permissive use, because
a mere license can never ripen into an easement.10 When there is an
abundance of water for all claimants, the use by one claimant cannot
be adverse to the use by any other.l0 A prescriptive right is limited to
the extent to which the right was enjoyed during the prescriptive
period."'0 Unless the successful adverse party so changes the use to
which his dam is put as to result in an increased obstruction to the flow
of the stream, the riparian owners cannot complain.'" A prescriptive
right to the use of water for irrigation purposes cannot be acquired by
one riparian landowner to the detriment of another.'*
The California courts have had occasion to approve various other
ways in which riparian rights can be severed from the land. 1 These
include chiefly: I) reservation of the riparian right in a conveyance
of the riparian land; 2) grant of use of the water in whole or in
part, leaving the fee of the land vested in the grantor-the effect
of which act is to estop the grantor and his successors from asserting
the riparian right in antagonism to the grantee and his successors; 3)
condemnation for public use under the statutes relating to eminent
domain; 4) conveyance of a portion of the land, leaving the detached
parcel without contact with the stream channel, in a deed that is

Clark v. Allaman, 71 Kan. 206, 245-246, 80 Pac. 571, 584 (1905).
'" 1 WIEL, op. Cit. supra note 18, J 863; HuTrcuIN, SELEacTE PROaLEMS, 41, 283, 296-297,
399; Id., THs CALIFORNIA LAW OF WATKr Ruomr 324-330.
Garden City Co. v. Bentrup, 228 F.2d 334, 340-341 (10th Cir. 1955).
'"Jobling v. Turtle, 75 Kan. 351,362-364, 89 Pac. 699, 703 (1907).
Clark v. Allaman, 71 Kan. 206, 246, 80 Pac. 571, 583 (1905); Jobling v. Tuttle, 75 Kan.
351, 362, 89 Pac. 699, 703 (1907).
SWallace v. Winfield, 96 Kan. 35, 38, 149 Pac. 693 (1915). "One acquiring a right by
prescription must keep within the right which he acquires."-Garden City Co. v. Bentrup, supra
note 104.
SWhitehair v. Brown, 80 Kan. 297, 300, 102 Pae. 783, 784 (1909).
Frizell v. Bindley, 144 Kan. 84, 93, 58 P.2d 95, 99 (1936).
HucmHNs, op. cit. supra note 95 at 182, 192-196.


1957]








558 KANSAS LAW REVIEw [Vol. 5

silent as to riparian rights, unless the circumstances show the intent of
the parties to preserve the water right in the now noncontiguous parcel;
(5) loss by avulsion or contact of the land with the stream channel,
unless the landowner restores the stream to its original channel within
a reasonable time and without trespassing on the lands of others; (6)
estoppel.

V. ASPECTS OF THE APPROPRIATIVE RIGHT
Accrual of the Right
Methods of appropriating water."l'-Each of the seventeen Western
states has a statute under which water may be appropriated. In most
of the states it is held or assumed that the statutory procedure is the
exclusive method of appropriating water of watercourses. However, in
Idaho one can make an equally valid appropriation by simply diverting
the water and putting it to use; in Colorado, lack of compliance with
the statutory requirements as to filing of maps and statements does not
invalidate the appropriation; and in Montana, the statutory method is
exclusive with respect to appropriations of water of adjudicated streams
only.112
The procedure in most Western states begins with an application to
the State Engineer or other administrative official for a permit to make
the appropriation. In Kansas, this function is vested in the Chief En-
gineer of the Division of Water Resources, State Board of Agricul-
ture."3 The permit, if granted, authorizes the permitted to build the
necessary diversion and distribution works, and to divert a specific
quantity of water and apply it to beneficial use. When the diversion and
application of the water to beneficial use have been completed, the
permitted makes proof to the administrator and receives from him a
certificate or license which is evidence of completion of the appropria-
tive right. Exceptions are Colorado, where the intending appropriator
commences the construction of works and within sixty days thereafter
files a claim with the State Engineer, and Montana, which has one pro-
cedure for adjudicated streams and another for unadjudicated streams.

m For this general topic, see 3 REPORT OP THE PRESIDENT'S WATER RESOURCES POLICY COM-
MISSION, WATER RESOURCES LAW, Appendix B (1950).
'Nielson v. Parker, 19 Idaho 727, 733-734, 115 Pac. 488 (1911); Archuleta v. Boulder &
Weld County Ditch Co., 118 Colo. 43, 53, 192 P.2d 891 (1948); Clausen v. Armington, 123
Mont. 1, 14, 212 P.2d 440 (1949); Anaconda National Bank v. Johnson, 75 Mont. 401, 411, 244
Pac. 141 (1926).
m KAN. G.S. 1949, 82a-709.









SYMPOSIUM ON WATER LAW


In neither Colorado nor Montana does the State Engineer have any
control over the appropriation of water.
The application procedure, which was first instituted in Wyoming
in 1890, supplanted the previous general method of initiating an appro-
priation by posting a notice or starting work."4 In Kansas, the act of
1886 provided for posting and recording of notices of appropriation in
the county records.1" The legislature in 1917 authorized the initiation
of appropriations of surface or ground waters by application to the
Kansas Water Commission, and in 1927 transferred the duties of the
commission to the Division of Water Resources of the State Board of
Agriculture.l" The two methods of making appropriations were in
legal effect concurrently until 1941, when the original provisions of
1886 were repealed."7 The present procedure, which follows the general
western pattern, was established in 1945.11
Restrictions on the right to appropriate water.n"-Constitutions of
four states contain provisions relating to the denial of rights to appro-
priate unappropriated waters. That of Colorado provides that such
right to appropriate the unappropriated water of any natural stream to
beneficial use shall never be denied; Idaho, that it shall never be denied,
except that the state may regulate and limit the use of water for power
purposes; Wyoming and Nebraska, that no appropriation shall be
denied except when such denial is demanded by the public interest.10
Statutes of several states authorize the administrator to reject an appli-
cation if its approval would be contrary to the public welfare, or require
rejection if there is no unappropriated water in the proposed source of
supply, or give authority to approve applications in part only, the
administrative decisions being subject to judicial review. The 1945
appropriation statute of Kansas contains such restrictions except as to
availability of unappropriated water.121 Subject to judicial review, the
exercise of administrative discretion, if not arbitrary or capricious, has
generally been upheld in the courts.122

'"CHANDLER, ELEMENTS OF WESTERN WATER LAW 56 (Rev. ed. 1918).
Kans. Gen. Laws 1886, ch. 115.
o Kans. Laws 1917, ch. 172; Laws 1927, ch. 293.
m Kans. Laws 1941, ch. 261.
8 Kans. Laws 1945, ch. 390; KAN. G.S. 1949, 82a-705 to 82a-715.
For this general topic, see HUTCHINS, SELECTED PROBLEMS, 337-358 and Appendix.
COLo. CONST., art. XVI, 1 6 (1876); IDAHO CONST., art XV, 5 3 (1889); NEB. CONST., art.
XV, 1 6 (1875); Wyo. CONST., art. VIII, I 3 (1889).
m KAN. G.S. 1949, 82a-711 and 82a-712.
w For a recent case, see Temescal Water Co. v. Department of Public Works, 44 Cal.2d 90,
99-100, 280 P.2d 1 (1955).


1957]








KANSAS LAW REVIEW


When the appropriative right accrues.-The time of accrual of an
appropriative right is the date of priority, which may or may not be
the time at which the right was initiated or the time at which it was
completed. Under the general western system of nonstatutory appro-
priation, the priority of an appropriation on its completion related back
to the time of initiation, provided due diligence was exercised in carry-
ing the undertaking through to completion; otherwise the priority date
was fixed as of the time of completion. Now, in most Western states,
the date of filing the application to appropriate water with the state
administrator is the tentative date of priority; and this is preserved
throughout the procedure and becomes the definitive priority of the
completed right, provided always that the intending appropriator does
everything required of him by law and by the administrative rules and
regulations made thereunder.1" But if he is negligent, the original
priority is lost. One way of handling this is to revoke the permit and
thus to require the permitted, if he wants to proceed with his intended
appropriation, to start all over again; another is to give notice that the
permit has lapsed but that, on a showing of reasonable cause, it may be
reinstated with the date of priority changed to the date of reinstate-
ment.124
Inchoate rights.-One who has lawfully undertaken to appropriate
water but who has not completed his appropriation does not hold title
to a water right in the full sense of the term, but he nevertheless has a
substantial right. Until he is in a position to use the water himself, he
cannot enjoin another party from using it nor have damages on such
account, but he has a substantial right in real property which he can
protect against invasion by means of an appropriate suit brought for
that purpose.125 Thus, pending the time he is ready to use the water,
an applicant or a permitted may have his inchoate right protected
against impairment by others; but the status of an applicant with re-
spect to the state agency that is authorized to approve his application
and issue a permit is a different matter. Unless and until the statutory
Compare KAN. G.S. 1949, 82a-710 and 82a-715.
"For respective examples of these general methods, see CAL. WATER CODE, is 1410-1415
(1949); Utah Code Ann., 55 73-3-17 and 73-3-18 (1953).
"Nevada County & Sacramento Canal Co. v. Kidd, 37 Cal. 282, 313 (1869); Inyo Con-
solidated Water Co. v. Jess, 161 Cal. 516, 519, 119 Pac. 934 (1912); Yuba River Power Co. v.
Nevada Irr. Dist., 207 Cal. 521, 522-528, 279 Pac. 128 (1929); Lambrix v. Frazier, 31 Idaho
382, 385, 171 Pac. 1134 (1918); Oscarson v. Norton, 39 F.2d 610, 613 (9th Cir. 1930). A court
of equity may entertain an action to quiet title to rights to use water not immediately available:
Byington v. Sacramento Valley West Side Canal Co., 170 Cal. 124, 127, 131-132, 148 Pac. 791
(1915).


[Vol. 5








SYMPOSmM ON WATER LAW


requirements and conditions are met, the applicant obtains no property
right or any other right against the state.126 Furthermore, under some
of the statutes, the state agency-its decision being subject to judicial
review-may exercise a broad discretion in deciding whether the issu-
ance of a permit will best serve the public interest.12
Waters Subject to Appropriation
Kinds of water supply.-Statements of appropriable waters in the
western statutes differ markedly in comprehensiveness. On the one
hand is the Arizona statute, which provides that "The water of all
sources, flowing in streams, canyons, rayines or other natural channels,
or in definite underground channels, whether perennial or intermit-
tent, flood, waste or surplus water, and of lakes, ponds and springs on
the surface" belongs to the public and is subject to appropriation for
beneficial use.128 At the other extreme are declarations in several sta-
tutes, including that of Kansas,' that subject to vested rights, all
surface and ground waters in the state may be appropriated for bene-
ficial use.
In general, it is unappropriated waters of definite natural sources
of supply belonging to the public that are open to appropriation. These
are chiefly watercourses-with their tributary streams and springs-
lakes, and ponds. As noted elsewhere in this article, other waters that
may be appropriated in some jurisdictions include nontributary springs
and ground water of various classes.
Navigable waters.-The question of navigability of a source of water
supply is important chiefly with respect to the exercise of a water
right. It has been noted above that riparian waters include navigable
waters, subject to the public easement of navigation; and likewise, "The
water of navigable streams may be appropriated as well as the water of
those not navigable,"130 subject to the requirement that the navigability
of the stream be not materially interfered with.x1s
The general rule, then, is that while one may appropriate water of
a navigable stream under the same conditions as those applying to non-

East Bay Municipal Utility Dist. v. State Department of Public Works, 1 Cal.d 476, 481,
35 P.2d 1027 (1934).
See Temescal Water v. Department of Public Works, supra note 122, at 99-100, 126.
"AMuz. REv. STAT. ANN. 45-101 (1956).
m KAN. G.S. 1949, 82a-703 and 82a-707.
O 1 WIEL, op. Cit. supra note 18, S 339.
mIn the 1955 revision of the South Dakota law relating to surface water rights, the former
provision excepting navigable waters from appropriation was repealed: S.D. Laws 1955, ch. 430,
S 1.


_


1957]








562 KANSAS LAW REVIEW [Vol. 5

navigable sources, the exercise of his right is subject to the public ease-
ment of navigation. Whether this public easement would be invoked
to prevent other uses of the water132 would depend on the exercise of
the extensive authority of Congress over commerce in the interests of
navigation.18
Who May Appropriate Water
Parties.-The general rule in the West is that an appropriation of
water may be made by a natural person, an incorporated group of
persons, a corporation, or a governmental agency or entity. The Kansas
statute provides that a "person" may appropriate water, and defines
"person" as a natural person, partnership, organization, corporation,
municipality, and any agency of the federal government. It provides
also that appropriatorr" is a person who obtains a permit from the
Chief Engineer authorizing him to divert and apply an allowed quantity
of water for a designated beneficial use and who makes actual use of
the water for such a purpose.18
A riparian owner in California may appropriate water for use on
his riparian land without affecting his riparian right in any way, pro-
vided only that the quantity of water applied to the soil under either
or both of these rights does not exceed his reasonable beneficial needs.183
In Oregon, on the other hand, a landowner who claims both riparian
and appropriative rights must choose between them, and if in a legal
action he predicates his claim to the use of water on priority and
specific quantity, he thereby waives his riparian right for the purpose
of that proceeding.18'
Relation of land to appropriation of water.1'--Although perfection
of the appropriative right requires application of the water to a bene-
ficial use at a particular place, to which place the right usually becomes
initially appurtenant, it is not necessary that the appropriator shall own
the land on which the appropriation is made. The general rule is that

"HARDING, WATER RIGHTS FOR IRRIGATION 14 (1936), states that: "While the legal right
of navigation to take precedence over other uses is well established, its exercise has been based
on questions of public policy, and it is not to be expected that the legal preference of navigation
will be enforced to prevent other uses except where navigation represents a greater public interest
than such other purposes."
For a discussion of Congressional control over navigation, see 3 REPORT OF THE PRESI-
DENT's WATER RESOURCES POLICY COMMISSION, WATER RESOURCES LAW 73-125. See also United
States v. Appalachian Electric Power Co., 311 U.S. 377, 404-427 (1940).
KAN. G.S. 1949, 82a-701 and 82a-709.
Rindge v. Crags Land Co., 56 Cal.App. 247, 252, 205 Pac. 36 (1922).
SState ex rel. v. Davis, 116 Ore. 232, 236, 240 Pac. 882 (1925).
'As to this general topic, see HUTCHINS, SELECTED PROBLEMS 310-313.









SYMPOSIUM ON WATER LAW


if he is at least in rightful possession, he may make a valid appropria-
tion. Arizona presents an exception to the rule in that the possessor
must have a present intent and an apparent future ability to acquire
ownership of the land.188 The decisions as to the right to appropriate
water while trespassing on land conflict.139
Property Characteristics
Real property.--Like the right of a riparian proprietor, that of an
appropriator is a right in real property.40
Appurtenance and conveyance of rights.-Although appurtenance
may depend on questions of fact, the appropriative right generally be-
comes an appurtenance to the land in connection with which the right
is perfected, particularly when used for irrigation. Whether or not
appurtenant, the right may usually be sold separately from the land.
In the absence of evidence of intent to the contrary, the appurtenant
right passes with a conveyance of the land even without express men-
tion in the deed or use of the word appurtenancee."''4 A related ques-
tion is the right to transfer the appropriative right from one tract of
land to another; this is permitted under certain conditions in most but
not all Western states, as noted below.
Many of the western statutes provide for the appurtenance of water
rights to land. This general custom is reflected in a Kansas statute
which provides that all water rights of every kind shall be appurtenant
to the land on which they are established by the use of water thereon,
and shall pass with any and all conveyances of such land whether
mentioned in the deeds of conveyance or not, unless expressly excepted
therefrom."14
Formalities of conveyance.-As the appropriative right is real estate,
the general rule is that a conveyance is within the statute of frauds and
therefore must be in writing.4" In Kansas, it is the statutory rule that
separate transfers of water rights may be made by deeds executed and
Tattersfield v. Putnam, 45 Ariz. 156, 168-174, 41 P.2d 228 (1935).
"See Idaho Power Co. v. Buhl, 62 Idaho 351, 357, 111 P.2d 1088 (1941); Avery v. John-
son, 59 Wash. 332, 334, 109 Pac. 1028 (1910); Smith v. Logan, 18 Nev. 149, 154, 1 Pac. 678
(1883); Patterson v. Ryan, 37 Utah 410, 415, 108 Pac. 1118 (1910).
See 1 WEL, op. cit. supra note 18, 18; 2 KINNEY, op. cit. supra note 17, S 769. KAN.
G.S. 1949, 42-121.
l1 1 WIEL, op. cit. supra note 18, S 550-552.
mIKAN. G.S. 1949, 42-121. The statute provides further that the water rights-or shares in
irrigation companies entitling the owners or holders to the use of water for irrigation purposes-
may be the subject of separate transfers by deeds executed and recorded as conveyances of real
estate, subject to the laws relating to registration and recording of conveyances affecting title
to real estate.
u" 1 WIEL, op. cit. supra note 18, 542.


I


1957]









564 KANSAS LAW REVIEW [Vol. 5

recorded as conveyances of real estate under the laws relating there-
to.1' However, in various jurisdictions, the validity of parol sales of
water rights has been sustained under circumstances of equity, where
the transferee had entered into possession and had made use of the
water and made improvements on the strength of the parol title."
Corpus of the water.-Again like the riparian right, ownership of
an appropriative right to use the water of a watercourse does not con-
stitute ownership of the particles or corpus of the water while flowing
in the stream. The holder's right is to take the water from its natural
source and to put it to use.16 The Kansas satute provides that an appro-
priation "shall not constitute ownership of the water, but shall remain
subject to the principle of beneficial use.""1
The foregoing concept is squarely opposed to that inherent in the
common law doctrine of rights in percolating water, the essential
feature of which is exclusive ownership of the water while it is in one's
land.1" However, this common-law "ownership" of water by the over-
lying owner is an anomaly-while giving him the right to abstract from
his land all the water he can find there, it affords him no protection
against the acts of neighbors who by pumping on their own land
manage to draw out of his land all the available water it contains.
Elements of the Appropriative Right
Priority of right.-The maxim of "first in time, first in right" has
been, from the first, a fundamental feature of the arid region doctrine
of appropriation."9 It means that earlier uses of water have preference
over later ones when the water supply is not enough for all; that the
user with the latest priority is the first one to have his headgate closed
by the watermaster when the stream flow begins to drop; and that
when only enough water is left in the stream to fill the earliest right,
the holder of that right is entitled to it all.
Each priority is represented by a date, which is the time at which the
-1 KAN. G.S. 1949, 42-121.
See Smith v. Green, 109 Cal. 228, 234, 41 Pac. 1022 (1895); Stepp v. Williams, 52 Cal.
App. 237, 253, 198 Pac. 661 (1921); Reynolds Irr. Dist v. Sproat, 70 Idaho 217, 221-222, 214
P.2d 880 (1950); Geary v. Harper, 92 Mont. 242, 248, 12 P.2d 276 (1932). The right to the
use of water reduced to possession by a riparian owner may be granted by parol: Johnston v.
Bowersock, 62 Kan. 148, 161-162, 61 Pac. 740 (1900).
1 WIEL, op. it. supra note 18, 18.
KAN. G.S. 1949, 82a-707. The CAL. WATER CODE, 5 1001, provides that "Nothing in this
division [relating chiefly to appropriation of water, determination of water rights, and distribu-
tion of water] shall be construed as giving or confirming any right, title, or interest to or in the
corpus of any water."
"2 WIEL, op. ci. .supra note 18, S 1039.
1 KINNEY, op. cit. supra note 17, S 599.









SYMPOSIUM ON WATER LAW


right accrued. As noted heretofore, this may be the time of initiation
of the right, or of reinstatement of a lapsed application, or of comple-
tion of the right, as the case may be. Although in general it is the
respective dates of priority that determine the allocation of water in
times of shortage, departures may result from application of statutory
restrictions or preferences.
Measure of the right.10--Capacity of the ditch, which was one of
the early standards by which an appropriative right was measured, is
now only a practical and necessary "ceiling"--that is, the right at any
particular time is limited by the capacity of the diversion and distribu-
tion works at that time, regardless of the formal terms of the appro-
priation.
The proposition that "Beneficial use shall be the basis, the measure
and the limit of the right to the use of water"161 has been valid, at least
in theory, throughout the history of the appropriation doctrine in the
West. Wasteful practices have indeed been tolerated in various court
decrees, particularly in the early days. But it is also true that with a
high degree of uniformity, statements of principle by appellate courts
have decried unnecessary waste and have insisted that efficiency in
means of diverting, distributing, and applying water shall at least
conform to the prevailing standards in the community.152 And cer-
tainly, the appropriation statutes have declared or implied the neces-
sity of beneficial use.13
Not only must the use of water by the appropriator be beneficial, it
must not exceed his actual needs, and must be economical and reason-
able in order that later appropriators shall not be precluded from access
to the water supply. In some states, statutory duties of water are pro-
vided for; in others, the maximum allowance depends on individual
circumstances."14
For discussions of the present status of this feature in recent publications, see HUTCMINS,
THE NEVADA LAW OF WATER RIGHTs 22-26 (1955); THE NEW MEXICO LAW OP WATER RIGHTS
25-27 (1955); THE OKLAHOMA LAW oF WATER RIGHTS 38 (1955); THE CALIFORNIA LAW OF
WATER RIGHTS 133-141 (1956); THE IDAHO LAW Op WATER RIGHTS 34-37 (1956).
m NEV. COMP. LAWS, S 7892 (1929).
~HuTCHINs, SELECTED PROBLEMS 306-309, 316-320.
mAn early Kansas statute, still extant, provides that an appropriation is effectual only as to
so much water as is actually applied to beneficial use, together with a reasonable allowance for
waste, seepage, and evaporation: Kans. Laws 1891, ch. 133; KAN. G.S. 1949, 42-302. The 1945
statute provides that all appropriations of water must be for some beneficial purpose, and that
an appropriation in excess of the reasonable needs of the appropriator shall not be allowed:
KAN. G.S. 1949, 82a-707 and 82a-717.
For some examples, see IDAHO CODE, 5S 42-202 and 42-220; NEB. REV. STAT. 5 46-231
(1943); NEV. COMP. LAWS, S 7899 (1929), amended STAT. 1945, ch. 56; N.M. STAT. ANN.,
75-5-17 (1953), amended by Laws 1955, ch. 91; Wyo. CoMP. STAT. ANN., 5 71-216 to
71-223 (1945).


I


1957]









KANSAS LAW REVIEW


Period of use of water.-The appropriative right relates to a definite
period of time during which it may be exercised. This may be the entire
year, as it is in parts of the Southwest. Or it may be certain months or
lesser parts of the year only."5 It may even relate to the use of a specific
water supply in favor of one appropriator during the day and another
at night.156 As an early court said, there is no difference in principle
between appropriations measured by time and those measured by
volume.1"
Place of use of water.-The intended place of use of water is desig-
nated in the application filed by one who seeks to appropriate water
under one of the current administrative statutes.?" This remains the
place of use unless and until changed in some manner authorized by
law.
Appropriation for use in another watershed.-The general rule is
that water may be appropriated for use in a watershed other than the
one in which the original diversion is made, provided that existing
rights in the original watershed are not adversely affected.'" However,
in some states there are statutory restrictions respecting the practice,'60
and Nebraska statutes have been so construed by the supreme court of
that state as to limit the location of canals to places within the water-
shed of the stream that is the source of the supply.'6" One of the most
serious water problems currently faced in California arises from the
highly controversial "counties of origin" and "watersheds or areas of
origin" statutes, to which state and federal projects are subject, which
have not yet been interpreted by the high courts of the state.162
Purpose of use of water.-An appropriation may be made for some
useful or beneficial purpose, which terms have been broadly applied.
Rights of use decreed by courts or recognized by statutes include do-
mestic, stock watering, fish culture, municipal, fire protection, mining,
milling, manufacturing, irrigation of both cultivated and uncultivated

s Barnes v. Sabron, 10 Nev. 217, 245 (1875); Harkey v. Smith, 31 N.M. 521, 525-530, 247
Pac. 550 (1926).
See Thorne v. McKinley Bros., 5 Cal.2d 704, 710, 56 P.2d 204 (1936).
Smith v. O'Hara, 43 Cal. 371, 376 (1872).
IKAN. G.S. 1949, 82a-709.
m Op. cit. supra note 23, at 14-15.
lN.M. STAT. ANN., S 75-5-24 and 75-7-5 (1943); TEx. REV. Civ. STAT., art. 7589 and
7590 (1925).
SOsterman v. Central Nebraska Public Power & Irr. Dist., 131 Neb. 356, 268 N.W. 334
(1936), construing NEB. REv. STAT., 46-206 and 46-265 (1943).
12CAL. WATER CODE, S 10500, 10504, 10505, 11128, 11400, 11451, 11452, 11460, 11461,
11462, 11463, 11500 (West 1956).


[Vol. 5









SYMPOSIUM ON WATER LAW


lands, development of power, navigation, land transportation, and
recreation and pleasure.
Some examples of uses of water held by courts to be not beneficial
in the sense that they can support valid appropriations are: Diversion
of water for the sole purpose of drainage; claims to the use of water
for no object other than speculation; extermination of gophers and
squirrels during the winter in an area of great need for water; winter
flooding for the purpose of producing an ice cap to promote the reten-
tion of moisture well into the growing season; and carrying off debris
during months in which the water is needed for irrigation.lea
Relative Rights of Senior and Junior Appropriators
Senior appropriators necessarily have first rights in a common
supply of water. This gives them a great advantage, but it also has its
limitations, for as against holders of junior rights, the things that the
senior appropriators can lawfully do are restricted to the terms of their
appropriations.
The junior appropriator is entitled to a continuance of the condi-
tions that existed at the time he made his appropriation. Hence, after
rights have been acquired by junior appropriators, the senior appro-
priator-although he may develop his project gradually or in stages if
that was part of the original plan and if it is carried out diligently-
cannot enlarge his right without making a new appropriation, which
in its turn will be junior to all rights existing at such time. As the
exercise of the senior right is restricted at all times to the quantities
of water actually required for current needs, notwithstanding the quan-
tity to which the right relates, junior appropriators are entitled, to the
extent of their own rights, not only to the quantities of water in excess
of all senior rights, but also to quantities covered by senior rights at
such times as the senior holders do not need the water. Thus, the rela-
tive rights of senior and junior appropriators are reciprocal-the senior
is entitled to protection against acts of the juniors that materially inter-
fere with the lawful exercise of their own water rights, and the latter
are equally entitled to protection against acts of the earlier appropria-
tors that exceed their authority to the detriment of the later users.'"
'"McKinney v. Smith, 21 Cal. 374, 381-382 (1863); Weaver v. Eureka Lake Co., 15 Cal.
271, 275 (1860); Tulare Irr. Dist. v. Lindsay-Strathmore Irr. Dist., 3 Cal.2d 489, 567-568, 45
P.2d 972 (1935); Blaine County Investment Co. v. Mays, 49 Idaho 766, 773, 291 Pac. 1055
(1930); In re Deschutes River and Tributaries, 134 Ore. 623, 665-667, 286 Pac. 563, 294 Pac.
1049 (1930).
'L For some cases in point, see-Arizona Copper Co. v. Gillespie, 12 Ariz. 190, 202-203, 100


1957]









568 KANSAS LAW REVIEW [Vol. 5

Changes in the Exercise of Water Rights
It has long been the general rule in the West that an appropriator
may change the point of his diversion of water from the stream, or the
place of use, or the purpose of his use of the water, so long as the rights
of others are not thereby impaired.'"" In many Western states, the
exercise of this privilege must conform to procedure set forth in the
statute, which usually requires the approval of the State Engineer or
other administrative official after a hearing."6 An early Kansas statute
provides that in case of a change in the channel of any natural stream
that results in the destruction or serious impairment of a ditch diver-
sion, the proprietor of the ditch may extend it to a new diversion point,
without loss of priority, provided that no injury is inflicted upon
others.167
Important exceptions to the general rule are: In Arizona, the place
of use of irrigation water may be changed only if for any natural cause
beyond control of the owner it becomes impracticable to use the water
beneficially or economically for irrigation of the land to which the
right is appurtenant.16 In Wyoming, water rights for the direct use of
the natural unstored flow of any stream cannot be detached from the
land, place, or purpose for which acquired except when making a
change to a preferred use; but reservoir water rights do not attach to
particular lands except by agreement between the reservoir owner and
holder of the right.1'
Preferences in the Appropriation and Use of Water
Despite the fact that the arid region doctrine of appropriation is
based on the fundamental concept of "first in time, first in right,"
deviations based on preferences have been made in some appropriation
statutes and even in some state constitutions. These divide into prefer-
ences that enter into the acquirement of appropriative rights, and those
that affect the use of water under rights that were acquired without
regard to questions of preference.
Pac. 465 (1909), 230 U.S. 46, 56-57 (1913); Wall v. Superior Court of Yavapai County, 53
Ariz. 344, 356, 89 P.2d 624 (1939); Pasadena v. Alhambra, 33 Cal.2d 908, 926, 207 P.2d 17
(1949); Hufford v. Dye, 162 Cal. 147, 153-154, 159-160, 121 Pac. 400 (1912); Crockett v.
Jones, 47 Idaho 497, 503-504, 277 Pac. 550 (1929); Proctor v. Jennings, 6 Nev. 83, 87-88
(1870); Ophir Silver Min. Co. v. Carpenter, 4 Nev. 534, 542-544, 548 (1869); Harkey v.
Smith, 31 N.M. 521, 530-531, 247 Pac. 550 (1926).
2 KiNNY, op. it. supra note 17, 856.
SOp. cit. supra note 23, 15-16.
"KAN. G.S. 1949, 42-304; enacted Laws 1891, ch. 133.
m*Ana. REV. STAT. ANN. 1 45-172 (1956).
"Wyo. COUP. STAT. ANN. 6 71-401 and 71-613 (1945).









1957] SYMPOSIUM ON WATER LAW 569

Acquirement of water rights.-Preference in the appropriation of
water must be given in some states to certain uses of water designated
by statute.
Some statutes are more specific than others in declaring how the
preference shall be applied. For example, the Arizona law provides that
when two or more pending applications to appropriate water conflict
and there is not enough water for all, the administrator shall give pref-
erence according to a certain order of uses of which the first is domestic
and municipal and the second irrigation and stock watering.170 This
is a clear directive to the effect that when there are pending at the same
time before the administrator several applications the aggregate of
which exceeds the available water supply, the use preference and not
the date of filing must govern the issue of permits. Less specific is the
California provision that in acting on applications to appropriate water,
the administrative agency shall be guided by the policy that domestic
use is the highest use of water and irrigation the next highest.71 How-
ever, the supreme court of that state sustained the administrative agency
in inserting, in a water power permit, a condition that the right thereby
granted shall not interfere with future appropriations of the same water
for agricultural or municipal purposes.172
Municipalities are accorded preferential rights in various states.
These preferences relate, variously, to the original acquirement of water
rights, to the right to appropriate water already appropriated by others,
and to the appropriation of water for future use.178
Use of appropriated water.-Constitutions of Colorado, Idaho, and
Nebraska, and statutes of Oregon and Utah, provide that in time of
scarcity of water, domestic uses shall have first preference and agricul-
tural uses the next.174 These Idaho and Nebraska preferences are con-
tingent on payment of compensation; and although the Colorado con-

1~'Aniz. REV. STAT. ANN. 5 45-147 (1956).
CAL. WATER CODE, 5 106 and 1254 (West 1956).
n East Bay Municipal Utility Dist. v. State Department of Public Works, 1 Cal.2d 476, 477-
481, 35 P.2d 1027 (1934).
For example: In California, application by a municipality is first in right irrespective of
whether it is first in time: CAL. WATER CODE, S 1460 (West 1956). In Texas, appropriations
from streams other than the Rio Grande, for purposes other than domestic or municipal, shall
be subject to the right of any municipality of the State to make further appropriation of such
water for domestic and municipal purposes without the necessity of making compensation: Tax.
REV. Civ. STAT., SS 7472 and 7472a (1925). Appropriations for future municipal use: Aniz.
REV. STAT. ANN. S 45-143 (1956); ORE, REV. STAT. S 537.190 (1953); Denver v. Sheriff, 105
Colo. 193, 202-204, 96 P.2d 836 (1939); Beus v. Soda Springs, 62 Idaho 1, 6-7, 107 P.2d 151
(1940); Holt v. Cheyenne, 22 Wyo. 212, 232, 137 Pac. 876 (1914).
1" COLO. CONST., art. XVI, S 6 (1876); InAHo CONSr., art. XV, S 3 (1889); NaE. CONsT., art.
XV, 6 (1875); ORE. REV. STAT. 5 540.140 (1953); UTAH CODE AmN. S 73-3-21 (1953).


i








570 KANSAS LAW REVIEW [Vol. 5

stitution says nothing about compensation, the supreme court of that
state has held that it is necessary nevertheless.l" Apparently the matter
of compensation has not had the attention of the high courts of Oregon
and Utah.
Change to a preferred use.-In addition to the matter of temporary
preferences in the use of a water supply in time of shortage, there is
the permanent change from an inferior to a superior or preferred use
by exercise of the power of eminent domain. In such condemnation
proceedings in Washington, the court is to determine what use of
water will be for the greatest public benefit, that use to be deemed a
superior one."7 In Wyoming, the supreme court pointed out that such
a condemnation proceeding in favor of a superior or preferred use
operates to take the inferior right with its existing priority, and does
not result in subordinating prior rights of other parties unless they are
likewise taken.1x
The Kansas statute of 1945.-The extant appropriation statute of
Kansas states that where appropriations of water for different purposes
conflict, they shall take precedence in the following order: domestic,
municipal, irrigation, industrial, recreational, and water power uses.178
This legislative mandate is not clear, and there is nothing to guide the
administrator or the courts in carrying it into effect. As it refers to
"appropriations" of water, it cannot mean pending applications to make
appropriations on which no action has been taken by the Chief Engi-
neer (see section 82a-701, subsection (f)). If it is intended to relate to
preferences in use of appropriated water in time of scarcity, it needs to
be reconciled with the immediately succeeding declaration that as be-
tween appropriators, the first in time is the first in right. And if it is
intended to relate to the right to condemn an inferior use of water in
favor of a preferred use, then that needs clarification.
Loss of Appropriative Rights
The ways in which appropriative rights are commonly subject to
loss are as follows:
Abandonment.-Abandonment is a process by which an appropria-
tor loses his right by permanently relinquishing it with the intention
Sterling v. Pawnee Ditch Extension Co., 42 Colo. 421, 426-427, 94 Pac. 339 (1908).
WASH. REV. CODE 5 90.04.030 (1952). See State ex rel. v. Superior Court, 119 Wash. 406,
410-411, 205 Pac. 1051 (1922).
1"Newcastle v. Smith, 28 Wyo. 371, 375-378, 205 Pac. 302 (1922). The statute is Wyo.
COMP. STAT. ANN. 71-402 (amended by Laws 1955, ch. 277) and 71-403 (1945).
1" KAN. G.S. 1949, 82a-707.









SYMPOSIUM ON WATER LAW


of doing so. It is necessarily a voluntary matter; and it may take place
instantly, on concurrence of the intent and the acts of the appropriator.
The intention may be expressed by declarations of the appropriator, or
it may be fairly inferred from his acts. Nonuse of the water, of itself,
does not constitute abandonment, but nonuse for a very long time may
be prima facie evidence of an intent to abandon the right. The burden
of proving an abandonment is on the party who asserts it.179
A few high court decisions, rendered long ago, were to the effect
that an appropriator, by verbally transferring his water right, aban-
doned it.180 These decisions disregarded the principle that intent is an
essential element of abandonment. The early Montana case was later
disapproved by the supreme court of that state.8ls And in a comparable
situation, the Oregon Supreme Court stated that the acts of an appro-
priator who sold his title orally for a consideration, surrendered posses-
sion, and agreed to make a proper conveyance, indicated not an intent
to abandon the water right, but "precisely the contrary intention."182
It may be noted that a Kansas statute enacted in 1891, and still extant,
which provides that any person who transfers his water right shall be
deemed to have abandoned all right to the use of the water, likewise
disregards this fundamental element of abandonment.s83
Statutory forfeiture.-Statutes of a majority of the Western states,
including Kansas, provide that if an appropriator fails to use water
during a stated number of consecutive years, the right ceases and the
water reverts to the public. The forfeiture periods range from two to
five years. Several states, again including Kansas, provide procedure
for the declaration of such forfeitures.8s4
Distinctions between abandonment and forfeiture.-Some of the
forfeiture statutes use the term "abandonment." This sometimes leads
to confusion in interpreting the statutes, for aside from the fact that
both abandonment and forfeiture involve the element of nonuse of
water, their principles are not identical."s8 Abandonment involves no
time element; it may take place instantly. Forfeiture, on the other
m See 1 WIEL, op. cit. supra note 18, S 567-570; Ward v. Monrovia, 16 Cal.2d 815, 820-
821, 108 P.2d 425 (1940); Carrington v. Crandall, 65 Idaho 525, 531, 147 P.2d 1009 (1944).
Barkley v. Tieleke, 2 Mont. 59, 62-65 (1874); Smith v. O'Hara, 43 Cal. 371, 376-377
(1872); Griseza v. Terwilliger, 144 Cal. 456, 461-462, 77 Pac. 1034 (1904).
McDonald v. Lannen, 19 Mont. 78, 83-86, 47 Pac. 648 (1897).
Watts v. Spencer, 51 Ore. 262, 268-271, 94 Pac. 39 (1908).
KAN. G.S. 1949, 42-314; Laws 1891, ch. 133.
Op. cit. supra note 23, 17-18. The Kansas provisions are in KAN. G.S. 1949, 42-308,
82a-717, 82a-718.
5 2 KINNEY, op. cit. supra note 17, 1118.


1957]








572 KANSAS LAW REVIEw [Vol. 5

hand, does not occur until the expiration of the statutory period, so
that time is an essential element. Abandonment is necessarily voluntary
and intentional. Forfeiture, on the contrary, may take place despite a
specific intention on the part of the owner not to surrender his water
right, and hence can be involuntary.
Prescription.--"The facts or elements which are necessary to the
existence of a prescriptive water right have been set forth in a veritable
forest of cases."1'
It is well settled in the West that an appropriative right may be lost
by adverse use under all the circumstances necessary to establish a
prescriptive right in the adverse party. It is also well settled that to
establish a prescriptive right to the use of water, the use must have
been actual, open, and notorious on the part of the adverse claimant;
adverse and hostile to the claim of the rightful owner; exclusive; con-
tinuous and uninterrupted; under a claim of right, with payment of
taxes whenever taxes have been levied on the water right; and must
have been made throughout the period prescribed by the statute of
limitation of actions to recover real property. The comments made
heretofore in this article with respect to the loss of a riparian right by
adverse possession apply equally to appropriative rights.
Whether, without making a statutory appropriation, a prescriptive
right can be acquired which, in addition to barring an action by the
injured party, is good as against other claimants on the stream, has
been the subject of statutes and court decisions in some jurisdictions
and of controversy among writers in others.187
Estoppel.-The loss of a water right by estoppel results from the
barring of the holder, because of circumstances for which he is held
responsible, from asserting his title before a court of equity. "The de-
fense of estoppel rests upon the doctrine that a right conceded for the
purpose of such defense to exist in a party, he shall not be permitted to
assert against another to the latter's injury because of the existence
and proof of certain facts and conditions which would render its

Peck v. Howard, 73 Cal.App.2d 308, 325, 167 P.2d 753 (1946).
See HUTCHINs, SELECTED PROBLEMS 400-402; THE NEVADA LAW OF WATER RIGHTs 40
(1955); UTAH CODE ANN. 5 73-3-1 (1953); Wellsville East Field Irr. Co. v. Lindsay Land &
Livestock Co., 104 Utah 448, 456-457, 137 P.2d 634 (1943); Kletzing, Prescriptive Water
Rights in California: Is Application a Prerequisite? 39 CAL. L. REV. 369 (1951); Trowbridge,
Prescriptive Water Rights in California: An Addendum, 39 CAL. L. REV. 525 (1951); Craig,
Prescriptive Water Rights in California and the Necessity for a Valid Statutory Appropriation,
42 CAL. L. REV. 219 (1954).









SYMPOSIUM ON WATER LAW


assertion inequitable.""' Undoubtedly, with respect to the loss of water
rights, estoppel is for more often claimed than established.18

VI. ADJUDICATION AND ADMINISTRATION OF WATER RIGHTS190

A suit for the adjudication of a water right, which is real property,
contemplates establishment of and quieting title to the right. Proce-
dures for adjudicating rights in the West fall into three groups: 1)
Civil suits, in which there is no participation by state administrative
officials, and which are prosecuted under the procedure applicable to
contests over title to real property. 2) Statutory procedures, under
which state administrators assist in private suits. 3) Comprehensive
procedures specially provided by statute for adjudication of all water
rights that attach to a stream system, in most of which cases fact finding
by state water administrative officials is an essential part of the pro-
ceeding.
The purposes of having special statutory procedures are to deter-
mine water rights in comprehensive proceedings, rather than in a
multiplicity of suits between individuals, and to have the benefit of
public records and surveys and the disinterested help of a state water
agency in making technical investigations and reports necessary to a
court adjudication.
In the second group, a number of statutes provide that in any suit
brought to determine water rights, all claimants shall be made parties,
and that the state administrator shall be or may be called on by the
court to make hydrographic studies which shall be admitted as evidence
in the suit. The California reference procedure has been much more
highly developed. Under that procedure, the trial court may make a
general reference to the administrator of all issues of law or fact, or
may make a less formal reference for investigation of and report on
physical facts. The latter type of reference is the one generally in use.
Basic systems in the comprehensive statutory group are:
1) The Colorado system, which was the first to be established in
San Diego v. Cuyamaca Water Co., 209 Cal. 105, 137, 287 Pac. 475 (1930).
See Morris v. Bean, 146 Fed. 423, 434 (D. Mont. 1906). For recent compilations for several
States, see HUTCHINs, THE NEW MEXICO LAW OF WATER RIGoHT 36 (1955); THE CALIPORNIA
LAW or WATER RIGHTS 343-348 (1956); THE IDAHO LAW O WATER RIGHTS 76 (1956). See also
Tanner v. Provo Res. Co., 99 Utah 139, 155-157, 98 P.2d 695 (1940).
1 Features of this general subject are summarized in an address by Hutchins, Special Pro-
cedures for Adjudication of Water Rights and Supervision of Diversion: General Survey of
Types of Procedures in the Western States, presented at Texas Water Law Conference, spon-
sored by Univ. of Texas School of Law, Austin, May 25, 1956.


1957]









574 KANSAS LAW REVIEW [Vol. 5

the West. Jurisdiction of all adjudication questions is vested in the
district courts on petition of water claimants. Participation of state
officials is limited to providing data on filings and diversion and stor-
age structures.
2) The Wyoming procedure. This places initial responsibility for
adjudications on the state administrators, whose decisions are final
unless appealed to the courts. A brief version of the Wyoming act was
adopted in Nebraska. And what was possibly intended as a brief ver-
sion of the Wyoming plan was included in the Kansas appropriation
act of 1945, although it may have been intended only as an administra-
tive determination for the benefit of the Chief Engineer.191 The con-
stitutionality of the Wyoming and Nebraska enabling acts was sus-
tained by the supreme courts of both states, but the comparable Texas
statute was invalidated by the Texas Supreme Court as violative of the
doctrine of separation of powers in that state.19"
3) The Oregon procedure differs from that of Wyoming only in
the requirement that the determination by the state administrator be
filed in court as the basis of a civil action. This procedure has been
adopted also in Nevada, California, and Arizona. The constitutionality
of the Oregon act has been sustained by the United States Supreme
Court.193
4) The essential features of a group of procedures, adopted in New
Mexico, North Dakota, South Dakota (since repealed), and Oklahoma,
are that on completion of a hydrographic survey of a stream system,
the state administrator delivers a copy to the Attorney General, who
enters suit for the determination of all rights to the use of such water.
Variations from these general groups appear in the statutes of the
other states.
Procedures for the administrative supervision of diversions under
adjudicated rights began in Colorado three-quarters of a century ago.
Various methods of carrying out this function are found in the statutes
of all seventeen Western states. Generally, the primary duty of a water-
master on a stream or section of a stream is to distribute, under the
supervision of the state administrator or an intermediate superinten-
dent, the stream water to those who are entitled to receive it. The
m KAN. G.S. 1949, 82a-704.
"Farm Investment Co. v. Carpenter, 9 Wyo. 110, 135, 143, 61 Pac. 258 (1900); Farmers'
Irr. Dist. v. Frank, 72 Neb. 136, 151-152, 100 N.W. 286 (1904); Board of Water Engineers v.
McKnight, 111 Tex. 82, 92-97, 229 S.W. 301 (1921).
Pacific Live Stock Co. v. Lewis, 241 U.S. 440, 449-455 (1916).








SYMPOSIM ON WATER LAW


authority of the watermaster may rest solely on the decree of adjudi-
cation, which it is his duty to administer and enforce, or may extend
to the administration of unadjudicated rights as well. He is vested with
authority to regulate headgates and, in various states, he has the power
to make arrests.

VII. CONFLICT BETWEEN RIGHTS BASED ON LANDOWNERSHIP AND
APPROPRIATIVE RIGHTS194
The conflict between riparian and appropriative rights on western
streams began more than a century ago and, in some jurisdictions, it
is still continuing. And along with the rapidly increasing development
of ground-water uses during the last half-century, the same funda-
mental conflict between rights of landowners and of appropriators
spread into that field, with results not uniformly conclusive.
The Riparian-Appropriator Conflict
With the development of the western country, in which the artifi-
cial use of water for mining and agriculture was so important and in
some areas so essential, it was inevitable that controversies should arise
between 1) owners of lands contiguous to streams, who claimed
superior rights in the stream water solely because of such contiguity,
whether or not they had used the water, and 2) persons who wished
to extend the use of the water to areas back from the channel and
thereby to increase the watered area and the usefulness of the water
supply, and who claimed superior rights solely because of priority in
the time of beginning use. The two concepts were incompatible, and
were in conflict.
In eight of the seventeen Western states the conflict was effectively
settled-or forestalled-by repudiating the riparian doctrine completely.
These are the generally semi-arid states lying between the tier of six
states on the 100th meridian and the three on the Pacific coast. Repudia-
tion of the riparian doctrine resulted from decisions of the several su-
preme courts and in addition, in Arizona, a legislative act.15 This left

"mFor a historical statement of the riparian-appropriative conflict in the West, with sup-
porting authorities, see Hutchins, History of the Conflict Between Riparian and Appropriative
Rights in the Western States, PRoc. WATER LAW CONFERENCES, sponsored by School of Law,
Univ. of Texas, 106-137, (1952 and 1954).
Aaiz. REV. STAT. 5 3198 (1887); Aiuz. CONST., art. XVII, 5 1 (1910); Clough v. Wing,
2 Ariz. 371, 381, 17 Pac. 453 (1888); Coffin v. Left Hand Ditch Co., 6 Colo. 443, 446-447
(1882); Idaho Power & Transportation Co. v. Stephenson, 16 Idaho 418, 429, 101 Pac. 821
(1909); Mettler v. Ames Realty Co., 61 Mont. 152, 157-158, 165-166, 170-171, 201 Pac. 702


1957]









KANSAS LAW REVIEW


the doctrine of prior appropriation as the exclusive method of acquiring
rights to the use of water of watercourses in these eight states.
In the other nine Western states, including Kansas, the riparian
doctrine was originally recognized by the courts, but the extent to
which it has been, on the one hand, retained as fundamental in the
state water law or, on the other hand, subordinated to the doctrine of
prior appropriation, varies markedly from one jurisdiction to another.
Consider first Oklahoma, in which both the riparian and appro-
priation doctrines have been adopted by both legislature and courts, but
in which there is no pronouncement by either branch of the state
government from which to conclude that one doctrine is superior to
the other. Controversies between riparian owners only, and between
appropriators only, have reached the Oklahoma Supreme Court, but
as yet no conflicts between riparians and appropriators. The relative
status of the two doctrines in that state is most uncertain.1"
Consider next California and Texas, which, as the result of recur-
rent controversies and litigation, accord fullest recognition to the ri-
parian doctrine in coexistence with the doctrine of appropriation. In
California, the riparian owner formerly was not held to any measure
of reasonableness as against an appropriator.197 However, a constitu-
tional amendment adopted in 1928 limited the exercise of all water
rights--specifically including riparian rights-to reasonable beneficial
use under reasonable methods of diversion and use,198 and the Cali-
fornia Supreme Court held that it must cause the water-rights law of
the state to conform to the state policy now commanded by the funda-
mental law.19 The amendment safeguards the riparian owner not only
in his present use of water, but also in his prospective reasonable bene-
ficial uses, which may be protected in a declaratory judgment and
decree pending the time the owner actually needs the water.2" In
Texas, riparian rights are held to have attached to lands granted by
the respective governments of Mexico and of the Republic and State
of Texas from 1823 to the enactment of the appropriation statute of
(1921); Jones v. Adams, 19 Nev. 78, 84-88, 6 Pac. 442 (1885), overruling conflicting decision
in Vansickle v. Haines, 7 Nev. 249 (1872); Trambley v. Luterman, 6 N.M. 15, 25, 27 Pac. 312
(1891); Stowell v. Johnson, 7 Utah 215, 225-226, 26 Pac. 290 (1891); Moyer v. Preston, 6 Wyo.
308, 318-319, 44 Pac. 845 (1896).
mSee HUTrcHmS, THE OKLcAHO LAw ov WATER RIGHTS 13-22 (1955).
m Miller & Lux v. Madera Canal & Irr. Co., 155 Cal. 59, 64, 99 Pac. 502 (1907, 1909).
*CAL.. CONST., art. XIV, 3 (1928).
"Peabody v. Vallejo, 2 Cal.2d 351, 365, 40 P.2d 486 (1935).
"Tulare Irr. Dist. v. Lindsay-Strathmore Irr. Dist., 3 Cal.2d 489, 525, 529-530, 45 P.2d
972 (1935).


[Vol. 5








SYMPOSIUM ON WATER LAW


1889. Unappropriated waters under this act did not include any waters
that were subject to rights thus granted to riparian owners that were
necessary for their use. But riparian waters are only those of the or-
dinary flow and underflow of the stream, and flood waters are subject
to appropriative rights only.201
At this point it is well to emphasize that there is no magic in the
word "appropriation," and that other things being equal, the use of
water can contribute to the welfare of the public, or to the interests of
individual owners of water rights, whether used on riparian or on
nonriparian land. The provocation for most of the attacks against the
ultra-riparian philosophy has been the superiority accorded in various
jurisdictions to the unused riparian right-what has sometimes led to
a "dog-in-the-manger" attitude on the part of riparian owners. In the
riparian doctrine states, it was not until after the turn of the century
that effective steps were first taken to deflate the importance of the
unused riparian right as against appropriators. The first decisions,
which were rendered by the Nebraska Supreme Court in 1905, 1)
sustained the right of an appropriator to enjoin an upstream use of
water that was begun after the appropriative right had accrued, and
2) denied the right of a riparian owner, who had made no use of the
water, to enjoin an upstream appropriative use; the remedy of the
riparian owner in either case being an action at law for such damages
as he could prove.202
In Washington, the supreme court has repeatedly recognized the
superiority of vested riparian rights to later appropriations, and has
protected them against invasions other than under eminent domain
proceedings.2 But it has established the principle that the waters of
nonnavigable streams in excess of the quantities that can be beneficially
used, either directly or prospectively, within a reasonable time, on or
in connection with riparian lands, are subject to appropriation for use
on nonriparian lands.2"
"Motl v. Boyd, 116 Tex. 82, 108-115, 121-124, 286 S.W. 458 (1926); Humphreys-Mexia
Co. v. Arsenaux, 116 Tex. 603, 610-611, 297 S.W. 225 (1927); Parker v. El Paso County W. I.
Dist. No. 1, 116 Tex. 631, 643, 297 S.W. 737 (1927); Texas Co. v. Burkett, 117 Tex. 16, 28,
296 S.W. 273 (1927); Freeland v. Peltier, 44 S.W.2d 404, 408 (Tex. Civ. App. 1931); Chicago,
R. I. & Gulf Ry. v. Tarrant County W. C. & I. Dist. No. 1, 123 Tex. 432, 449, 73 S.W.2d 55
(1934); Fort Quitman Land Co. v. Mier, 211 S.W.2d 340, 344 (Tex.Civ.App. 1948).
mMcCook Irr. & Water Power Co. v. Crews, 70 Neb. 109, 121, 127, 96 N.W. 996 (1903),
102 N.W. 249 (1905); Cline v. Stock, 71 Neb. 70, 80-83, 98 N.W. 454 (1904), 102 N.W. 265
(1905).
2 Hunter Land Co. v. Laugenour, 140 Wash. 558, 567, 579, 250 Pac. 41 (1926); Church v.
Barnes, 175 Wash., 327, 328-330, 27 P.2d 690 (1933); In re Clinton Water Dist, 36 Wash.2d
284, 286-291, 218 P.2d 309 (1950).
'In re Sinlahekin Creek, 162 Wash. 635, 640-641, 299 Pac. 649 (1931).


1957]









578 KANSAS LAW REVIEW [Vol. 5

Again, early in the present century, Oregon decisions were de-
nuding the riparian doctrine of its obstructive aspects,20' including the
holding that the effect of the Desert Land Act of Congress of 1877 was
to abrogate the riparian doctrine, except as to domestic and stock-
watering purposes, with respect to all public lands entered after its
enactment.206 Then in 1909 the new water code of Oregon contained
provisions defining and limiting vested riparian rights to the actual
application of water to beneficial use prior to the passage of the act, or
within a reasonable time thereafter by means of works then under con-
struction.207 The validity of this legislation was sustained by the
Oregon Supreme Court by a vote of 4 to 3, and by the United States
Court of Appeals, 9th Circuit, by a vote of 2 to 1.208
Coming now to recent activities, both of the Dakotas took legis-
lative action in 1955. The North Dakota Supreme Court continued
to adhere to the riparian doctrine as late as 1940,209 but has had no
occasion to pass on conflicts with appropriators. However, the 1955
legislature declared that "The several and reciprocal rights of a riparian
owner, other than a municipal corporation, in the waters of the state
comprise the ordinary or natural use of water for domestic and stock-
watering purposes."210 Decisions in South Dakota early in the present
century were to the effect that riparian rights accrued at the time of
settlement on public lands bordering streams and were not divested by
any state legislation. They allowed the riparian owner, as against a sub-
sequent appropriator, the use of all water necessary for the proper irri-
gation of his land without waste, whether or not he had previously exer-
cised the right.211 But in 1955, in completely reenacting the appropria-
tion statute, the legislature included a provision defining vested riparian
Brown v. Baker, 39 Ore. 66, 70, 65 Pac. 799, 66 Pac. 193 (1901); Caviness v. La Grande
Irr. Co., 60 Ore. 410, 420-421, 119 Pac. 731 (1911); State ex rel. v. Davis, 116 Ore. 232, 236,
240 Pac. 882 (1925); In re Sucker Creek, 83 Ore. 228, 235-237, 163 Pac. 430 (1917).
'sHough v. Porter, 51 Ore. 318, 383-404, 95 Pac. 732 (1908), 98 Pac. 1083 (1909), 102
Pac. 728 (1909), construing 19 STAT. 377 (1877), 43 U.S.C. 5 321 (1953).
"Ore. Laws 1909, ch. 216, S 70; now ORE. REV. STAT. 5 539.010 (1955).
"BIn re Hood River, 114 Ore. 112, 173-182, 227 Pac. 1065 (1924); in error, dismissed for
want of jurisdiction for want of a final judgment, Pacific Power & Light Co. v. Bayer, 273 U.S.
647 (1926). California Oregon Power Co. v. Beaver Portland Cement Co., 73 F.2d 555, 568-
569 (9th Cir. 1934); affirmed, but without expressing an opinion as to the validity of the legis-
lation, California Oregon Power Co. v. Beaver Portland Cement Co., 295 U.S. 142 (1935). See
Hutchins, The Common-Law Riparian Doctrine in Oregon: Legislative and Judicial Modifica-
tion, 36 ORE. L. REV. 193 (1957).
SJohnson v. Armour & Co., 69 N.D. 769, 776-779, 291 N.W. 113 (1940).
mN.D. Laws 1955, ch. 345, 5 2.
"mLone Tree Ditch Co. v. Cyclone Ditch Co., 15 S.D. 519, 522, 91 N.W. 352 (1902), 26
S.D. 307, 309-311, 128 N.W. 596 (1910); Redwater Land & Canal Co. v. Reed, 26 S.D. 466,
487, 128 N.W. 702 (1910); St. Germain Irrigating Ditch Co. v. Hawthorne Ditch Co., 32 S.D.
260, 266-268, 143 N.W. 124 (1913).









SYMPOSIUM ON WATER LAW


rights along the lines of the Oregon statute of 1909.212 As yet, the su-
preme court of neither North Dakota nor South Dakota has had occa-
sion to construe the 1955 restrictive legislation.
This brings us to Kansas, in which legislative action has been sup-
ported by the courts on all points raised. In this state the doctrine of
riparian rights was recognized and applied in several fairly early court
decisions;213 and as recently as 1944 the supreme court stated that over
the years, its decisions had held the common law to be applicable to
water and the rights of parties thereto except and to the extent that it
had been modified by statutes, judicial opinions, or the wants and
needs of the people.214
In Clark v. Allaman, decided in 1905, the Kansas Supreme Court
stated that while fundamental in Kansas jurisprudence, the common-
law riparian doctrine had been modified by legislation enacted in
1886216 and the following years, but that manifestly, proceedings under
these statutes could not operate to the destruction of previously vested
common law rights.216 About thirty years later, the supreme court held
that the 1886 law was ineffective as conferring a right of priority on an
intending appropriator as against owners of riparian lands held under
patents that antedated the statute, but withheld judgment as to the
effect of the law on the riparian status of lands patented subse-
quently.217 Then in 1944, the court held that the Division of Water
Resources, State Board of Agriculture, had no authority under the 1917
law218 to conduct a hearing on the application of anyone desiring to
use ground waters, or to regulate, allocate, or distribute such waters.219

1 S.D. Laws 1955, ch. 430, substituting S.D. CODE 61.0102 (7) (1939) after repealing
i 61.0101 to 61.0153 of the 1939 Code.
SShamleffer v. Council Grove Peerless Mill Co., 18 Kan. 24, 31-33 (1877); Emporia v.
Soden, 25 Kan. 588, 604, 606, 608-609 (1881); Campbell v. Grimes, 62 Kan. 503, 505, 64 Pac.
62 (1901). For some decisions touching riparian rights, in addition to those cited herein, see
Wood v. Fowler, 26 Kan. 682, 689-690, 40 Am. Rep. 330 (1882); Johnston v. Bowersock, 62
Kan. 148, 161-162, 61 Pac. 740, 745 (1900); Whitehair v. Brown, 80 Kan. 297, 300, 102 Pac.
783 (1909); Wallace v. Winfield, 96 Kan. 35, 38, 40, 149 Pac. 693, 695 (1915), 98 Kan. 651,
653-654, 159 Pac. 11, 12 (1916); Atchison, Topeka & Santa Fe Ry. v. Shriver, 101 Kan. 257,
258, 166 Pac. 519 (1917); Dougan v. Board of County Commissioners, 141 Kan. 554, 562, 43
P.2d 223, 225 (1935); Durkee v. Board of County Commissioners, 142 Kan. 690, 693-694, 51
P.2d 984, 985 (1935); Smith v. Miller, 147 Kan. 40, 42, 75 P.2d 273 (1938); Heise v. Schulz,
167 Kan. 34, 41-43, 204 P.2d 706, 709 (1949); Weaver v. Beech Aircraft Corp., 180 Kan. 224,
303 P.2d 159 (1956). See Note, 5 KAN. L. REV. 746 (1957).
m' State ex rel. v. State Board of Agriculture, 158 Kan. 603, 605, 149 P.2d 604, 605 (1944).
Kans. Laws 1886, ch. 115.
m Clark v. Allaman, 71 Kan. 206, 237-239, 241, 80 Pac. 571, 581 (1905).
7 Frizell v. Bindley, 144 Kan. 84, 91-93, 58 P.2d 95, 98 (1936).
SKans. Laws 1917, ch. 172. The provisions of the 1886 statute were repealed in Laws
1941, ch. 261.
m State ex rel. v. State Board of Agriculture, 158 Kan. 603, 605-614, 149 P.2d 604, 605-
608 (1944).


1957]








580 KANSAS LAW REVIEW [Vol. 5

In view of this 1944 decision, and on the recommendations of a
committee appointed by the Governor,2o the 1945 legislature passed
an act for the purpose of strengthening the appropriation doctrine in
Kansas and reducing the advantage of location of lands riparian to
surface streams and overlying ground waters as against appropriations
of water for beneficial use of nonriparian and nonoverlying lands. Ex-
perience in other states, particularly Nebraska and Oregon, in deflating
the importance of unused common law rights, was adapted to Kan-
sas conditions.221 The act provided that nothing therein contained
should impair the vested right of any person except for nonuse; and
based its definition of "vested right" on actual application of water to
beneficial use within three years prior to the passage of the act or with
the use of works then under construction. Common law claimants were
accorded the right to recover damages for any property taken by
appropriators. Appropriators were afforded injunctive relief against
subsequent diversions by common-law claimants without first being
required to condemn possible private rights. Although this law un-
questionably needs clarification and amplification to achieve its greatest
usefulness, it proved to be a valuable starting point in resolving the
long-continued conflict between riparian and appropriative rights in
Kansas, and its validity has been sustained in both state and federal
courts on all questions submitted as to constitutionality, including
alleged violation of the fourteenth amendment to the United States
Constitution.222
The Overlying Landowner-Appropriator Conflict
Conflicts arose as inevitably between owners of lands overlying
ground-water supplies and appropriators thereof as between riparians
and appropriators. It might have been expected that in a given juris-
diction such conflicts would be resolved in the same way, but this has
not always been the case, for, in the several Western states, ground-
water and surface-water rights have not necessarily followed the same
pattern.

STHE APPROPRIATION OF WATER FOR BENEFICIAL PURPOSES, A REPORT TO THE GOVERNOR
ON HISTORIC, PHYSICAL AND LEGAL ASPECTS OF THE PROBLEM IN KANSAs. Submitted to the
Honorable Andrew F. Schoeppel, Governor of Kansas, December, 1944, 79 pp. Topeka, Kansas.
n Kans. Laws 1945, ch. 390; KAN. G.S. 1949, 82a-701 to 82a-722.
"State ex rel. v. Knapp, 167 Kan. 546, 555-556, 207 P.2d 440, 444 (1949); Bau-
mann v. Smrha, 145 F.Supp. 617 (D. Kan. 1956), affirmed per curiam 352 U.S. 863 (1956).
See Note, 5 KAN. L. REV. 470 (1957). See also Williams v. Wichita, Civ. Action No. W-756 (D.
Kan. 1955, 1956); in memorandum decision, judgment modified and affirmed without written
opinion, 230 F.2d 959 (10th Cir. 1956).


I _









SYMPOSIrM ON WATER LAW


Typical examples of this diversity are to be found in several of the
riparian-doctrine states. Thus, in California, the correlative right of an
owner of overlying land is analogous to the riparian right; and since the
adoption of the constitutional amendment of 1928, overlying owner-
appropriator and riparian-appropriator relationships have been based on
substantially the same principles.228 Oklahoma and Washington, which
by court decisions adopted rules of reasonable use of percolating ground
waters, have by statute subjected such waters to appropriation2 2 Courts
of Texas, on the contrary, follow the rule of absolute ownership of per-
colating water, and the ground-water conservation district statute speci-
fically recognizes the rights of the overlying landowner, subject to the
district rules for prevention of waste, and provides that the law of
surface water rights shall not apply.22
Diversity applies likewise in some of the exclusive appropriation doc-
trine states. Although most of them, by statute or court decision or
both, apply the appropriation doctrine to percolating waters as well as
to surface watercourses, the Montana Supreme Court still adheres to
the absolute-ownership rule,226 and the Arizona Supreme Court has
declared in favor of the rule of reasonable use.227
Before the Kansas courts had construed the water-rights legislation
of 1945, they had accepted the rule that percolating water belongs to
the owner of the land in which it is found.228 A statement made in
1911, in a case that involved questions of injury to ground-water sup-
plies, indicated a leaning toward reasonable use.229 But in 1944, after
reviewing various Kansas cases, the supreme court observed that there
had been no departure from the basic principle that water rights were
governed by the common law except as modified by statute, that
ground waters are part of the real property in which they are situated,
"Katz v. Walkinshaw, 141 Cal. 116, 134-135, 143-144, 70 Pac. 663 (1902), 74 Pac. 766
(1903); Hudson v. Dailey, 156 Cal. 617, 628, 105 Pac. 748 (1909); Peabody v. Vallejo, 2 Cal.2d
391, 372, 383, 40 P.2d 486 (1935).
"Canada v. Shawnee, 179 Okla. 53, 54-57, 64 P.2d 694 (1936, 1937); Okla. Laws 1949,
p. 641, OK.A. STAT. 1951, tit. 82, SS 1001 to 1019 (1951). Evans v. Seattle, 182 Wash. 450,
457-460, 47 P.2d 984 (1935); Wash. Laws 1945, ch. 263, WASH. REV. CODE, 5 90.44.010 to
90.44.240 (1952).
*Corpus Christi v. Pleasanton, 154 Tex. 289, 294, 276 S.W.2d 798 (1955); TEX. REV.
Cv. STAT. art. 7880-3c (1925).
*Rock Creek Ditch & Flume Co. v. Miller, 93 Mont. 248, 256-260, 17 P.2d 1074 (1933).
However, a stream appropriator has the right to seepage water that has its rise along the bed
of a stream and forms a natural accretion thereto, even as against the owner of the land:
Woodward v. Perkins, 116 Mont. 46, 52, 53, 147 P.2d 1016 (1944).
Bristor v. Cheatham, 75 Ariz. 227, 235-238, 255 P.2d 173 (1953).
Jobling v. Tutde, 75 Kan. 351, 360, 89 Pac. 699, 704 (1907). See Emporia v. Soden, 25
Kan. 588, 608-609 (1881).
Gilmore v. Royal Salt Co., 84 Kan. 729, 731, 115 Pac. 541 (1911).


1957]









582 KANSAS LAW REVIEw [Vol. 5

and that the owner of land owns its surface and ground water by the
same title as he owns the land itself.230 Two years later, by reference to
the foregoing case, a similar statement was made.231 From these cases,
it is concluded that the English or common-law rule was still the law
in Kansas with respect to percolating ground waters when the 1945
legislation was enacted.
The 1945 act placed all waters under state regulation and control
and subject to vested rights, it specifically declared both surface and
ground waters open to appropriation. Acceptance by the courts of this
legislative mandate is noted immediately above, in connection with the
riparian-appropriator conflict on surface streams. So far as points of
constitutionality have been passed on by the courts, the law is equally
valid in its surface water and ground water aspects. Not only is this
implicit in the decisions, there is a case on each-the Knapp case in-
volved surface water, and the Baumann case ground water.2?
As stated early in this article, fourteen of the seventeen Western
states have statutes relating to the use of percolating ground water.
Three of these states extend regulation of one kind or another to certain
uses of ground water in areas in which it is particularly needed, but
without basing restrictions on priority of appropriation; the other
eleven, including Kansas, have brought rights of use under the doctrine
of prior appropriation. In the few instances in which the supreme courts
of the states concerned have been called on to determine the constitu-
tionality of the ground-water appropriation statutes, the validity of the
extant ones, including that of Kansas, has been sustained.233
Reconciliation of Conflicts
In general, over the years, conflicts between western riparian pro-
prietors and appropriators have been resolved either by eliminating the
riparian doctrine completely, or by restricting obstructive aspects of

State ex rel. v. State Board of Agriculture, 158 Kan. 603, 605-609, 149 P.2d. 604, 605-606
(1944).
m Arensman v. Kitch, 160 Kan. 783, 791, 165 Pac. 441, 444 (1946).
Supra note 222.
8 New Mexico: State ex rel. Bliss v. Dority, 55 N.M. 12, 225 P.2d 1007 (1950); appeal dis-
missed for want of a substantial Federal question, Dority v. Bliss, 341 U.S. 924 (1951).
In Yeo v. Tweedy, 34 N.M. 611, 286 Pac. 970 (1929), the first statute was held technically
invalid, although the appropriative principle was approved. Utah: The statute was enacted after
the supreme court, in Justesen v. Olsen, 86 Utah 158, 40 P.2d 802 (1935), see Wrathall v.
Johnson, 86 Utah 50, 40 P.2d 755 (1935), had held artesian waters subject to appropriation.
The statute has had the attention of the supreme court in Riordan v. Westwood, 115 Utah 215,
203 P.2d 922 (1949), and Hanson v. Salt Lake City, 115 Utah 404, 205 P.2d 255 (1949), al-
though its validity was not in issue. Undoubtedly, in the current judicial view, the underlying
principle is constitutional. Kansas: State ex rel. v. Knapp, Baumann v. Smhra, supra note 222.








SYMPOSIUM ON WATER LAW


riparianism and imposing rules of reasonableness upon riparian owners
in their contests with appropriators as well as with other riparians. The
same observation applies-again in general-to overlying-appropriator
conflicts; for it is assumed that the appropriation statutes that have not
yet been judicially construed are constitutional, and even in the absolute-
ownership jurisdictions of Montana and Texas, it is doubtful that
flagrant waste by an overlying owner would be tolerated by the courts.
Furthermore, one of the chief purposes of the Texas district statute
is to prevent waste of ground water.
An important phase of the resolving of conflicts between water
rights under different doctrines is the coordination of rights in surface
and ground-water supplies. On the one hand, there is no possibility of
coordinating appropriative rights in a surface stream and overlying
rights of absolute ownership in ground waters that are tributary to the
stream or that escape from it. In such case, as against each other, the
stream appropriator or the overlying owner, as the case may be, takes
all the water that he can divert or abstract, and at the same time has
no recourse over the depletion of his own supply by the other's taking.
But laws that purport to bring rights to the use of all waters-surface
and subterranean-under the doctrine of prior appropriation, afford
opportunity for complete coordination in situations in which rights to
the use of stream waters and connected waters are in controversy. And
the same opportunity is afforded in a state in which all rights in inter-
connected supplies, whether riparian, overlying, or appropriative, are
adjudicated and administered on a basis of reasonable beneficial use.
As said in such a controversy nearly a half-century ago, there is no
rational ground for any distinction between percolating waters that
feed a stream and are necessary to its continued flow, and waters in
the gravels immediately beneath and directly supporting the surface
flow, and no reason for applying different rules to the two classes with
respect to such rights if, indeed, the two classes can be distinguished
at all."'


" Hudson v. Dailey, 156 Cal. 617, 628, 105 Pac. 748 (1909).


1957]




University of Florida Home Page
© 2004 - 2010 University of Florida George A. Smathers Libraries.
All rights reserved.

Acceptable Use, Copyright, and Disclaimer Statement
Last updated October 10, 2010 - - mvs