Title: State v. Knapp - Supreme Court of Kansas, June 11, 1949
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Title: State v. Knapp - Supreme Court of Kansas, June 11, 1949
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Publisher: 207 Pacific Reporter, 2d Series
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Spatial Coverage: North America -- United States of America -- Florida
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Abstract: Jake Varn Collection - State v. Knapp - Supreme Court of Kansas, June 11, 1949 (JDV Box 86)
General Note: Box 22, Folder 3 ( Court Cases of Water Rights in States Other Than Florida - 1990 ), Item 12
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207 PACIFIC REPORTER, 2d SERIES


107 Kan. 546
STATE ex rel. EMERY v. KNAPP.et al.
No. 37631.
Supreme Court of Kansas.
June 11, 1949.
I. States 6
The Republican River Compact en-
tered into by Colorado, Kansas and Nebras-
ka, with consent of Congress, for.beneficial
consumption of waters of the Republican
River, is binding on the citizens of each
state and on the judicial and executive
branches of the state governments. G.S.
1947 Supp. 82a-518.

2. Waters and water courses C=35
The legislature has statutory authority
to make any change in the :common law
rights of riparian owners. G.S.1935, 77-109.

3. Levees and flood control Il
States G=6
Waters and water courses S=222
Owners of realty in Kansas could not
complain of building of dam in Nebraska on
the Republican River to impound water for
flood control and irrigation or other works
done under acts of Congress or under the
Republican River Compact entered into by
Colorado, Kansas, and Nebraska for the
beneficial consumption of waters of the
Republican River. Act Cong. Dec. 22.
1944, 58 Stat. 887; G.S.1947 Supp. 82a-518.
4. Courts 0=90(1)
Broad statements in some of Supreme
Court's opinions that every man through
whose land a stream of water runs is en-
titled to the flow of that stream without
diminution or alteration, must be disregard-
ed or modified to harmonize with subsequent
statute declaring that all water within the
-state is dedicated to the use of the people
of the state subject to regulation of the
state in manner prescribed in statutes. G.S.
1947.Supp. 82a-702.
5. Constitutional law <=92
Water and water courses 9=216
The act to conserve, protect, control,
and regulate the use, development, diver-
sion, and appropriation of water for bene-
ficial and public purposes, and to prevent
waste and unreasonable use of water, is not
unconstitutional as taking of pre-existing


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vested riparian rights of down stream own-
ers. G.S.1947 Supp. 82a-701 et seq.

6. Eminent domain 084
A riparian owner does not have such
rights as must be acquired by eminent do-
main. G.S.1947 Supp. 82a-701 et seq.

'7. Waters and water courses <=216
Act to conserve and regulate the use,
"development, diversion and appropriation of
*water for beneficial and public purposes,
and to prevent waste and unreasonable use
of water, is not unconstitutional because it
provides for diversion and delivery, on pay-
ment of water charges, of water from river
to. irrigate lands that are not riparian in
character and located miles from the river.
G.S.1947 Supp. 82a-701 et seq.

8. Waters and water courses 0<216
Act to conserve and regulate the use,
development, diversion and appropriation of
water for beneficial and 'public purposes,
and to prevent waste and unreasonable use
of water, is not unconstitutional as requir-
ing owner of riparian lands to apply afirma-
tively to obtain approval of chief engineer
of the Division of Water Resources for
use of river water in order to preserve
such rights. G.S.1947 Supp. 82a-701 et seq.

9. Constitutional law -=62, 80(1)
Waters and water courses =i21G
Act to conserve and regulate the use,
development, diversion and appropriation
of water for beneficial and public purposes.
and to prevent waste and unreasonable use
of water, is not unconstitutional as improp-
erly conferring legislative or judicial pow-
ers on the chief engineer of the Division of
Water Resources. G.S.1947 Supp. 42-701
et seq.

10. Water and water courses 3S=216
Statutes providing that majority of
qualified owners of irrigable lands, within
proposed drainage district may petition and
make application to chief engineer of Divi-
sion of Water Resources for establish !-m'nt
of an irrigation district which may cr.p-
erate with United States under reclamation
laws, are not unconstitutional as improperly
conferring legislative or judicial powers on
the chief engineer. G.S.1947 Supp. 42-701
to 42-704.


I, __


440 Kan.







STATE v.
Cite as 207
II. Waters and water courses 0'216
The inclusion of non-irrigable lands in
irrigation district located on the Republican
River in accordance with federal reclama-
tion laws, to extent of about 43 per cent of
total area thereof, did not amount to arbit-
rary action on part of chief engineer of
the Division of Water Resources, so as to
be in contravention of constitutional pro-
visions. G.S.1947 Supp. 82a-701 et seq.
12. Water and water courses <=216
Statute authorizing board to issue ir-
rigation district -warrants for purpose of
financing preliminary work of board and its
engineers, attorneys, agents, and employees
and other necessary incidental expenses,
and to agree that ad valorcm taxes first
collected by irrigation district should be
used in payment of such warrants, and au-
thorizing board annually to levy and collect
the general tax not exceeding two mills on
a dollar on all taxable property within dis-
trict to pay warrants and the improvements,
is not unconstitutional as providing an im-
proper taxation of taxable property in dis-
trict. G.S.1947 Supp. 42-709.

Syllabus by the Court.
Questions as to the constitutional va-
lidity of G.S.1947 Supp. 42-701 to 42-704
and 42-709, and Chapter 82a, art 7, are
considered and held not to be well taken.

.

Action in the nature of quo warrant by
the State of Kansas, on the relation of Fred
Emery, County Attorney of Republic Coun-
ty, Kansas (Frank G. Spurney, substituted,
as succeeding County Attorney), against
Geo. S. Knapp, Chief Engineer, Division
of Water Resources, the Kansas Bostwick
Irrigation District No. 2 and its officers, for
determination as to the constitutionality of
certain statutes under which- the district
was organized.
Statutes declared constitutional.
Fred Emery, of Belleville (Frank G.
Spurney, County Attorney, Belleville, on the
brief), for plaintiff.
Warden L. Noe, Special Assistant Attor-
ney General, of Topeka (Harold R. Fatzer,
Attorney General, on the brief), for de-
207 P.2d-28%/


KNAPP Kan. 441
SP.2d 440
fendant Chief Engineer, Division of Water
Resources.
N. J. Ward, of Belleville (Donald Ma-
gaw, of Osborne, on the brief), for defend-
ant district and directors.

HARVEY, Chief Justice.
This proceeding is submitted to the court
upon briefs and oral argument for the de-
termination of certain legal questions upon;
facts stipulated by the parties as follows:
"It is stipulated as between the parties
that, subject to the Court's approval, this
action be decided upon certain questions of
law presented by the pleadings... As all the
questions presented by the pleadings are not
so submitted, the parties agree that for the
purpose of decision the pleadings be con-
sidered, as containing only facts that pres-
ent the questions now to be stated.
"A statement of facts, which the parties
agree shall be considered with the plead-
ings, is as follows:
"The action is in behalf of the State, in
the character of quo warrant, against
Kansas Bostwick Irrigation District No. 2
and its officers, and Geo. S. Knapp, as Chief
Engineer of the Division of Water Re-
sources of the Kansas State Board of Agri-
culture.
"A petition was filed with the defendant
Knapp, in his official capacity, on July 18,
1948, under Sec. 42-701 G.S.Supp.1947,
seeking the organization, establishment and
authority to incorporate the district, for the
purposes, among others there recited, of co-
operating with the United States as pro-
vided under the Federal Reclamation Laws.
and other acts of Congress relating to
water conservation and flood control, in the
construction of irrigation and drainage
works, the purchase, extension, operation
and maintenance of such works, the irriga-
tion of irrigable lands in the district, and
the assumption of obligations on the part
of such district as principal or guarantor
of indebtedness to the United States on
account of said works.
"The petition-was signed by 265 qualified:
landowners, owning 33,735 acres of ir-
rigable land in the district there proposed;
there being, in all, 483 qualified owners,








207 PACIFIC REPORTER, 2d SERIES


owning the 49,554 acres of irrigable land
therein.
"Accompanying the petition, there was
also filed an application, under Sec. 82a-
709, G.S.Supp.1947, for a permit to ap-
propriate waters from the Republican Riv-
er for irrigation of the lands of the district.
"Following notice, a hearing was had
before the chief engineer on September 21,
1948, at which were presented objections
of some 60 owners of land in the district.
By appropriate findings and orders, the
chief engineer granted the petition, fixing
the boundaries of the district as set forth
in the petition and approved the applica-
tion for diversion and appropriation from
such river, of 130,000 acre feet of water
per calendar year, for such purposes, at a
rate not exceeding 827 cubic feet per sec-
ond.
"No appeal was taken from the action
of the chief engineer and transcript of the
proceedings was filed with the Secretary of
State on October 26, 1948. Articles of in-
corporation were issued and recorded, and
thereafter the district elected its officers. It
issued temporary warrants to provide funds
for preliminary organization expense under
42-709, G.S.Supp.1947.
"As is commonly known, the Republican
River and its tributaries flow through a
part of Colorado and Nebraska. Its main
stem enters and recrosses the Nebraska-
Kansas state line (the north line of Jewell
County, Kansas) several times then crosses
north central Kansas, a distance of some
135 miles, to its confluence with the Smoky
Hill River, near Junction City, Kansas.
There are many persons who have owned
riparian lands below the district, for a
number of years prior to 1945.
"The district lies along both banks of
the Republican. It extends from the Kan-
sas-Nebraska state line southward some 19
miles on the west side of the river, and
about 12 miles on the east side. By far
the greater part lies in Republic County.
Its width varies; it extends up to about
10 miles west of the river, and has an
average width, west of the river, of about
6.5 miles. Its width east of the river ex-
tends to a little over two miles and has an


average width east of the river of about
one and one-half miles.
"The proposed district contains some 87,-
850 acres, of which 49,554 acres, or about
57 per cent thereof, are classed as irrigable
by the Reclamation Bureau. Approximate-
ly 43 per cent of the irrigable land is de-
signated by the Bureau as Class 1, which
requires little preparation for irrigation.
About 49 per cent there-of is designated
as Class 2, which requires some prepara-
tion, because of its soil or topographic fea-
tures and the remaining 7 per cent is desig-
nated as Class 3, which for the same rea-
sons requires considerable preparation, al-
though still considered as economically
feasible. Of the about 38,300 acres of non-
irrigable land in the district, which con-
stitutes about 43 per cent of the area of the
district, about 1,000 acres thereof lies in the
bed of the Republican River and the re-
mainder is scattered over the district in
small parcels, as along the beds of creeks
and draws, along ridges and other high
areas, and just inside the outer boundary
or perimeter of the district, which results
from following subdivisions of the original
government surveys. The irrigation plan
includes, however, later irrigation of much
of that now classed as non-irrigable, by
means not immediately available.
"The Republican River Compact, recent-
ly concluded as between Kansas, Nebraska
and Colorado, (Chap. 82a, art. 5, G.S.Supp.
1947) reflects that the average annual flow
of the Republican River at its lowest cross-
ing of the Kansas-Nebraska State Line,
undepleted by man, is 478,900 acre feet of
water. Remaining after deduction of the
allocations to Nebraska and Colorado, for
irrigation and other uses, is 190,300 acre
feet, that is allocated to Kansas by the
Compact. It is from this 190,300 acre feet
of water allocated that the 130,000 acre feet
is to be taken annually by the district. As
hereinafter shown the planned diversion
points are located so near the State line
that any local surface drainage to the river,
in Kansas, above the diversion, is so in-
consequential that it may be now disre-
garded.
"The Government has constructed what
is known as the Harlan dam across the


442 Kan.







STATE v.
Cite as 207
Republican River, about 80 miles west of
the district, in Nebraska, to impound water
for flood control and. other purposes, in-
cluding irrigation. The plan is to divert
water from the river by means of two di-
version dams; one near Guide Rock, Ne-
braska, below the Harlan dam, to provide
water by means of canals, for a part of the
portion of the defendant district lying west
of the river, and another district just across
the state line, in Nebraska. A second di-
version dam is planned in and near the
north end. of the defendant district, to be
known as the Hardy dam, to divert water
into canals serving that part of the district
east of the river, and the remainder of the
part west of the river. The federal govern-
ment proposes to erect the dams, main
canals and distribution works, if the district
will contribute under a contract with the
federal government over a period of years
toward maintenance of the works, and to
the extent it is able, toward the cost of the
works, by means of special assessments and
water charges collected in the district. The
directors have not by resolution or other-
wise, yet committed the district to the pay-
ment of any specific sum for the district's
contribution toward construction of the
works, and the engineer's estimate of cost
stated in paragraph 11 of the petition are
not binding on the district.
"The greater portion of the lands in the
district, for which the district proposes to
provide irrigation water from the river,
consists of lands of persons whose prop-
erty does not touch the river, and lie from
a fraction of a mile to as much as nine
miles from the river.
"The proposed diversion of water for ir-
rigation by the district will result in sub-
stantially reducing and diminishing the an-
nual flow of the river thus allocated to
Kansas, below the diversion points, and
thus infringe upon the rights of the owners
of riparian lands lying in and downstream
from the defendant district. As it is not
possible to state the extent of injury, if
any, to lower riparian lands, and each tract
will present its own problem, as affected by
subsurface waters, surface drainage below
the diversion points, return flow of irriga-
tion waters by surface and subterranean
means, and other local considerations; the


KNAPP. Kan. 443
P.2d 440
matter is here submitted upon the assump-
tion that substantial injury will result. The
defendants deny that any ultimate substan-
tial injury to riparian owners will actually
result, and hence such assumption, made
for the purposes of this decision only, shall
not be taken as a general admission of such
fact, by the defendants.
"Since the approval of application for
appropriation by the defendant district
three other similar approvals have been
granted, for 98, 80 and 120 acre feet of
water annually, respectively.
"Prior to the approval of the chief engi-
neer of the application for appropriation of
water by the defendant district there were
four approvals entered for water appropri-
ation from the river by individual owners
of riparian lands; two granted in 1943,
without specifying the amount, one wai:
granted in 1947 for 100 acre feet of water
annually, and one in 1948 for 226 acre feet
annually. All were for irrigation, and by
owners of land downstream from the de-
fendant district.
"The chief engineer has not completed
gathering data, or made any orders pur-
suant to Sec. 82a-704, G.S.Supp.1947, nor
have any orders been entered by him under
Sec. 82a-708 and 82a-715 fixing the amount
of water or priority of right with respect
to the two applications made in 1943.
"The federal government, through -its
appropriate agencies, has declined to pro-
ceed with the erection of diversion dams,
canals and distribution works unless and
until it is judicially determined that the dis-
trict has been lawfully incorporated, and
that it may lawfully divert, appropriate and
so use the water covered by approval of
its application for appropriation as granted
by the chief engineer. Hence this action.
"Questions Submitted for-Determination.
"1. Are Sections 82a-701 to 82a-720, G.S.
Supp.1947 unconstitutional as a taking of
pre-existing vested riparian rights of down-
stream owners?
"2. Are Sections 82a-701 to 82a-720,
G.S.Supp.1947 unconstitutional as providing
for the diversion and delivery, upon pay-
ment of water charges, of water from the
river to irrigate lands that are not riparian
in character, i. e., lands that do not touch








207 PACIFIC REPORTER, 2d SERIES


the river and are owned by persons whose
land holdings are all at least several miles
from the river, as against and without any
acquisition of the rights of lower riparian
owners ?
"3. Are Sections 82a-701 to 82a-720,
G.S.Supp.1947 unconstitutional as requir-
ing an owner of riparian lands to affirma-
'tively apply to and obtain the approval of
the chief engineer for the use of river
water in order to preserve such rights; or
Sin case of use on or within three years prior
to June 28, 1945, to appeal from an order of
the chief engineer, made without hearing
and without notice except subsequent mail-
ing thereof?.
"4. Are Sections 82a-701 to 82a-720,
G.S.Supp.1947 unconstitutional as impro-
perly conferring legislative or judicial pow-
ers upon the chief engineer of water re-
sources?
"5. Are Sections 42-701 to 42-704, G.S.
Supp.1947 unconstitutional as improperly
conferring legislative or judicial powers
upon the chief engineer of water resources?
"6. Does the inclusion of non-irrigable
lands in the district to the extent of ap-
proximately 43% of the total area thereof
'amount to arbitrary action and abuse of dis-
cretion on the part of the chief engineer,
so as to be in contravention of constitution-
al provisions?
"7. Are the provisions of Section 42-709,
G.S.Supp.1947 unconstitutional as provid-
ing an improper' taxation of all taxable
property in the district?
In view of the above stipulation it is not
necessary to analyze the pleadings filed
herein by the respective parties, but the
same are hereby referred to for their spe-
cific allegations.
[1] Before taking up the specific ques-
tions submitted for determination by the
stipulation we must take note of the fact
that the defendant, Kansas Bostwick Irri-
gation District No. 2, is but a small part of
the large project of the federal govern-
ment authorized by the Act of Congress of
December 22, 1944, 58 Stat. 887, pursuant
to which the United States is constructing
the Missouri River Basin Project as set
forth in House Document 475 and Senate
Document 191,'as revised and coordinated


by Senate Document 247, all of the 78th'
Congress, second session. See 43 U.S.C.A.
371 et seq., including the above and re-
lated Acts of Congress. Broadly speaking,
and as far as here pertinent, the federal
government by these acts has undertaken to
put the waters of the Missouri River and
its tributaries to beneficial uses by con-
structing dams and levees which would im-
prove the uniform flow of water for navi-
gation, prevent the disastrous effects of
floods, provide low cost electric energy,
furnish water for irrigation and for securi-
ty against drouth, aid municipal water sup-
plies, and furnish places for recreation and
for the conservation of wild life. The area
of the project -is the entire valley of. the
Missouri River and its tributaries and in-
cludes the part of the state of Kansas north
of the southern drainage area into the
Kansas River and its tributaries, all of the
states of Nebraska, North and South Dako-
ta, the parts of Montana and Wyoming east
of the Continental Divide, and northeast-
ern Colorado, the drainage of which is to
the tributaries of the Missouri River. That
Congress had authority to enact such legis-
lation is thoroughly attested and is not
questioned here. Under U.S.Const. art. 6,
cl. 2, these Acts of Congress become a part
of "the supreme Law of the Land; and the
Judges in every State shall be bound there-
by, any Thing in the Constitution or Laws
of any State to the Contrary notwith-
standing." In addition thereto the states of
Colorado, Kansas and Nebraska, with the
consent of Congress, have entered into what
is known as the Republican River Compact
for the beneficial consumptive use of the
waters of the Republican River. See G.S.
1947 Supp. 82a-518, for its terms and the
map showing its location. Such a compact
is binding upon the citizens of each state
and on the judicial and the executive
branches of the state government. See 59
C.J. 37 and authorities there cited. In June,
1944, this court decided the case of State ex
rel. v. Kansas State Board of Agriculture,
158 Kan. 603, 149 P.2d 604, 605, in which
it was held: "We have no statute which
authorizes the Division of Water Resources
of the State Board of Agriculture or its
chief engineer to regulate, allocate or dis-
tribute, or otherwise interfere with the use


_ ___


_q ~


444 Kan.







STATE v.
Cite as 207
and consumption of underground waters,
or to conduct a hearing upon the applica-
tion of anyone desiring to use such waters
for the allocation, distribution or regula-
tion thereof."
The opinion referred to many of our
earlier cases pertaining to irrigation and
the common law rights of riparian owners
and spoke of such rights being governed by
the common law, except as they had been
modified by statute. In August, 1944, the
governor appointed a committee which in-
cluded George S. Knapp, chief engineer of
the Division of Water Resources, one of
the defendantsherein, as chairman, the at-
torney general, and other able men who
had given much study to the subject In
December of that year the committee made
its printed report to the governor. This in-
cluded a synopsis of our statutes and de-
cisions pertaining to waters, irrigation, and
the rights of riparian owners, and ex-
pressed the view that our laws should be
adjusted to present needs, from which we
quote in part:
"The Committee believes that conditions,
and the needs of the people in Kansas, have
changed so greatly since the early adoption
of the common law as applied to water use,
that the time has come to modify the com-
mon law to the extent necessary to set up
a system of appropriation, based on priority
of right, but without depriving the common-
law owner of relief by proper compensation
for limitations placed on unused common-
law rights.
"It believes that unused water cannot
wisely be held in perpetuity for a common-
law owner who may never have use for it,
without resulting in underdevelopment per-
mitting the water to flow out of the state
and on toward the ocean, as an economic
waste and loss of a valuable natural re-
source. -c
"It believes two things are needed, (1) to
establish the right of appropriation under
the rule of priority of right, and (2) to
establish adequate administrative control
over the appropriation of water to prevent
overdevelopment of any source of supply
with resulting injury to established uses."
After further discussion the committee
recommended the enactment of the statute.


KNAPP Kan. 445
P.2d 440
Governor Schoeppel, in his message to the
legislature of 1945, referred to this commit-
tee and stated that it "made a report and
certain recommendations that I deem wise,
expedient and necessary for consideration
by this session of the Legislature." The re-
sult was the enactment of the proposed act
recommended by the committee, which be-
came Chapter 390, Laws of 1945, now G.S.
1947 Supp., Chapter 82a, art. 7.
[2] We think it not out of place to note
that recently, in Cow Creek Valley Flood
Prevention Ass'n v. 'City of Hutchinson,
166 Kan. 78, 88, 200 P.2d 299, we spoke of
the very considerable progress of the law
with reference to flood control. In that
case and in Board of County Com'rs of
Sedgwick County v. Robb, 166 Kan. 122,
199 P.2d 530, we approved the federal and
state statutes for flood control of the Ar-
kansas River, and in Heise v. Schulz, 167
Kan. 34, 41, 204 P.2d 706, we took notice of
the analysis of the two common-law theor-
ies of riparian rights. This made it clear
that the law of riparian rights originated in
this country and did not find its way into
the English cases until 1851. We also take
note of the fact that if the statutes here
under consideration make any change in
the common-law rights of riparian owners
our statute, G.S.1935, 77-109, effective since
1868, Ch. 119, 3, Gen.Stat.1863, author-
izes the legislature to do so.
Chapter 390, Laws 1945, was entitled "An
Act to conserve, protect, control and regu-
late the use, development, diversion and ap-
propriation of water for beneficial and pub-
lic purposes, and to prevent waste and un-
reasonable use of water, *"
amending and repealing certain prior sec--
tions of our statute. Its pertinent provi-
sions may be summarized or quoted as fol-
lows, using section numbers-in the 1947
Supplement; Ch. 82a, art. 7:
701 defines (a) "Person" ; (b) "Chief
Engineer" ; (c) "'Domestic uses' means
the use of water for household purposes,
the watering of livestock, poultry, farm and
domestic animals and the irrigation of
gardens and lawns" ; (d) "'Vested right'
means the right to continue the use of
water having actually been applied to any
beneficial use at the time of the passage of
this act or within three years prior thereto


-r I II I







207 PACIFIC REPORTER, 2d SERIES


to the extent of the existing beneficial use
made thereof, and shall include the right to
take and use water for beneficial purposes
where a person is engaged in the construc-
tion of works for the actual application of
water to a beneficial use at the time of the
passage of this act,. provided such works
shall be completed and water is actually ap-
plied for such use within a reasonable time
thereafter" ; (e) defines "Appropriator",
and (f) "Appropriation".
702. "All water within the state of Kan-
sas is hereby dedicated to the use of the
people of the state, subject to the control
and regulation of the state in the manner
herein prescribed."
703. "Subject to vested rights, all waters
within the state may be appropriated for
beneficial use as herein provided. Nothing
in this act contained shall impair the vested
right of any person except for nonuse."
704. Authorizes and requires the chief
engineer to collect data respecting the vest-
ed rights of all parties using water for
beneficial purposes other than domestic, to
make a record of the same in his office, and
to make an order determining and estab-
lishing the rights of all persons making
beneficial use of water, and to notify the
water users thereof, which order may be
appealed from to the district court.
705. "No person shall have the power or
authority to acquire an appropriation right
to water without first obtaining the ap-
proval of the chief engineer: Provided,
however, That this section shall not apply
to persons using water for domestic uses."
706. "The chief engineer is hereby au-
thorized and empowered, and it is hereby
made the duty of such officer, to control,
,conserve, regulate and allot the water re-
sources of the state for the benefits and
beneficial uses of all of its inhabitants in
accordance with the rights of priority of
appropriation."
707. "(a) Surface or ground waters of
the state may be appropriated as herein
provided. Such appropriation shall not
constitute absolute ownership of such water,
but shall remain subject to the principle of
beneficial use. (b) Where appropriations
of water for different purposes conflict they


shall take precedence in the following or-
der, namely: Domestic, municipal, irri-
gation, industrial, recreational and water
power uses. (c) As between appropriat-
ors, the first in time is the first in right.
The priority of the appropriation shall date
from the time of the filing of the applica-
tion therefore in the office of the chief en-
gineer. (d) Appropriation in excess of the
reasonable needs of the appropriators shall
not be allowed."
708. "The chief engineer shall deter-
mine the priorities of right to the use of
the waters of the state, as to all persons
who have since May 5, 1941, and who shall
hereafter make application for a permit or
certificate to divert, appropriate and use
water. An appeal may be taken from any
decision or order of the chief engineer to
the district court in the county of his offi-
cial residence or in the county in which the
point of diversion is located. All such ap-
peals must be filed within thirty days after
date of such decision or order."
709, 710 and 711 provide for applications
for the beneficial use of water and the pro-
cedure for handling them by the chief en-
gineer.
712, deals with the approval or disapprov-
al of the application and provides for reme-
dy by injunction in certain cases.
713 to 715 are procedural provisions.
716. "If any appropriation, or the con
struction and operation of authorized di-
version works results in an injury to any
common-law claimant, such person shall be
entitled to due compensation in a suitable
action at law against the appropriator for
damages proved for any property taken.
An appropriator who has acquired a valid
right under this statute may prevent, by in-
junction, a subsequent diversion by a com-
mon-law claimant of private rights without
being required to first condemn possible
private rights. An appropriator shall have
right to injunction relief to protect his prior
right of beneficial use as against use by an
appropriator with a later priority of right."
717. "All appropriations of water must
be for some beneficial purpose. The right
of the appropriator and his successors to


446 Kan.





the use of water shall terminate when he
ceases for three years or more, to use it
for the beneficial purposes authorized in
his permit or certificate."
718 outlines a forfeiture procedure with
appeal to the district court.
719 to 722 need not be specially noted.
Shortly stated, G.S.1947 Supp. 42-701 to
42-704 provide that the majority of the
qualified owners of irrigable lands within
a proposed drainage district may petition
and make application to the chief engineer
of the division of water resources of the
state board of agriculture for the organi-
zation, establishment and authority to in-
corporate an irrigation district under the
provisions of the act; that such irrigation
districts may form or cooperate with the
United States under the federal reclama-
tion laws, or any act of Congress which
shall permit the performance by the United
States of work in this state for the con-
struction of irrigation works, including
drainage works, or for the purchase, ex-
tension, operation or maintenance of con-
struction works, or for the assumption as a
principal or guarantor of indebtedness of
the United States on account of district
works. The procedure is outlined for the
hearing of the petition by the chief engi-
neer and his approval or disapproval there-
of, and for an appeal from his decision to
the district court.of the county, where a
further hearing may be had.
If the district is approved and the peti-
tioners authorized to incorporate the same
there are further provisions for the elec-
tion of a board of directors and outlining
their duties. In connection with that sec-
tion, 42-709 authorizes the board to issue
irrigation district warrants for the purpose
of financing the preliminary work of the
board and its. engineers, attorneys, agents
and employees and other necessary inci-
dental expenses, and to agree that the ad
valorem taxes first collected by the district
shall be used in payment of such warrants,
and authorizing the board annually to levy
and collect a general tax not exceeding two
mills on the dollar on all taxable property
within the district for the purpose of paying
the warrants and the improvements to be
made.


STATE v.
Cite as 207


mwmw


KNAPP Kan. 447
P.2d 440
We do not find it necessary to write a
treatise on the law of waters. Neither do
we find it necessary to recite and comment
upon each of the many cases cited by
counsel, though we have examined and con-
sidered them. We shall limit our decision,
as nearly as possible, to the questions sub-
mitted for our decision.
[3] We must start with the realization
that all the improvements being made or
contemplated for the beneficial use of the
waters of the Republican River are author-
ized by acts of Congress and the Tri-State
Compact, both of which are binding upon
the state and all citizens or owners of
property within the state. Hence, they are
in no position to complain of the building
of the Harlan dam to impound water for
flood control and irrigation or other works
done under such acts of Congress or by
compact.
[4] We next observe that no complaint
is made of section 702, which declares:
"All water within the state of Kansas is
hereby dedicated to the use of the people of
the state, subject to the control and regula-
tion of the state in the manner herein pre-
scribed."
This is the heart of the statute. The rest
of it treats of details and procedure. It
forms the basis for a different approach
to the solution of questions concerning
water rights than we have had in some of
our opinions. Heretofore we have ap-_
proached the questions largely on the basis
of individual interest alone. Under this
declaration and other provisions of the act
we now approach them upon the basis of
the interest of the people of the state with-
out losing sight of the beneficial use the
individual is making or has the right to
make of the water. Unused or unusable
rights predicated alone upon theory become
of little if any importance. Broad state-
ments found in some of our opinions, such
as "Every man through whose land a
stream of water runs is entitled to the flow
of that stream without diminution or altera-
tion" Shamleffer v. Council Grove Peer-
less Mill Company, 18 Kan. 24, must be
disregarded or modified to harmonize with
this declaration. The change is an appro-








207 PACIFIC REPORTER, 2d SERIES


private one for the legislature to make. In-
dividuals do not live alone in isolated areas
where they, at their will, can assert all of
their: individual rights without regard to
the effect upon others.
[5-12] Considering the portions of the
statute dealing with details and procedure
we find nothing seriously wrong with them.
We have difficulty in seeing that the own-
er of land-in Kansas riparian to the Re-
publican River has a vested interest. in
flood waters of the river impounded in the
Harlan dam, eighty miles or more from
his property. If he thinks he has such
rights, and they have been damaged by the
impounding of the water in the dam and'
its use for irrigation in Nebraska and Kan-
sas, the statute gives him a right to bring
a suit for such damages. The suggestion
that he has such rights as must be ac-
quired by eminent domain is untenable.
The suggestion that such an owner may be
damaged by the use of such water for ir-
.rigation upon lands several miles from the
river cannot be sustained. If the state is
to control and regulate the waters of the
state other than for domestic, use it must
ascertain what other use is being made of
the water by riparian owners, and the act is
not invalid because it authorizes the chief
engineer to ascertain what other use is
being made of the property and to require
the owner to furnish a statement of such
use and to obtain the approval of the
chief engineer thereto, with the right of the-
owner to appeal to the district court from
the determination of the chief engineer.
Neither -of :the provisions, G.S.1947 Supp.,
Ch.:82a, art. 7, inor those in G.S.1947 Supp.
42-701 to 42-704, confer legislative power
upon the chief engineer. In the formation'
of such a drainage district the fact that it
includes some non-irrigable 'land, or land
which is not 'presently irrigable, is not a
material defect. The provision that some
non-irrigable land within the district may
be taxed for preliminary expenses is not
invalid.
The result is that all of the questions
submitted to us for determination should
be and they hereby are answered in the neg-
ative.


167 Kan. 580
MAGAW v. EMICK.
No. 37740.
Supreme Court of Kansas.
June 11, 1949.
I. Descent and distribution -=75
Executors and administrators -=130(1)
.Though an administrator has a right
of possession of realty until estate is set-
tled or until delivered by order of court to
heirs, the property passes to the heirs, sub-
ject only to be taken in a.statutory manner
for statutory purposes. G.S.1947 Supp.
59-502, 59-504 to 59-508, 59-1401.

2. Executors and administrators 0137, 321
An administrator may sell realty only
for purpose of paying reasonable funeral
expenses, expenses of last sickness, wages
of servants during last sickness, cost of ad-
ministration, taxes, or debts. G.S.1947
Supp. 59-1410, '59-1412.

3. Executors and administrators C=321, 326
A probate court may not order the
sale of realty because the division thereof
may not be made in kind, nor because sale
thereof might be for the best interests of
the estate. G.S.1947 Supp. 59-1410, 59-
1412.

4. Executors and administrators 0 320
Probate court does not have power to
authorize a sale of the whole of a de-
ceased's realty merely because some part
of.it is subject to sale to raise funds to pay
statutory charges. G.S.1947 Supp. 59-1410,
59-1412.

5. Executors and administrators =330
Probate court had no'authority to au-
thorize administrator to sell six separate
tracts of realty belonging to deceased's es-
tate, where sale of all tracts'was not neces-
sary to pay statutory charges, and an order
directing sale of the six tracts was void.
G.S.1947 Supp. 59-1410, 59-1412.
6. Courts .=2001/4
Such equitable powers as a probate
court possesses are only to be exercised in
hearing and determining a matter properly
before the court, and in; which it has ju
risdiction to act.


448 Kan.:




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