Title: Baumann v. SMRHA - United States District Court, D. Kansas, April 30, 1956
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 Material Information
Title: Baumann v. SMRHA - United States District Court, D. Kansas, April 30, 1956
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Language: English
Publisher: 145 Federal Supplement
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Jake Varn Collection - Baumann v. SMRHA - United States District Court, D. Kansas, April 30, 1956 (JDV Box 86)
General Note: Box 22, Folder 3 ( Court Cases of Water Rights in States Other Than Florida - 1990 ), Item 14
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00004451
Volume ID: VID00001
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Full Text



BAUMANN
Cite as 145 F
PALMIERI, Disrtict Judge.
The petitioner seeks exoneration from
or limitation of liability in connection
with the loss of its vessel S. S. Mormac-
kite on a voyage from Victoria, Brazil, to
Baltimore, Maryland, which commenced
on September 25, 1954. The vessel had
loaded approximately 9,000 tons of ore
cargo at Victoria, Brazil. Rumbling
noises allegedly heard by surviving mem-
bers of the crew indicated that this cargo
had shifted or was in the process of shift-
ing shortly before the vessel capsized and
sank. Most of the crew, including all of
the officers, perished in the disaster. Be-
cause of the ocean depth at the point
where the sinking occurred, no examina-
tion of the wreck has been possible.
An application is now before me, pur-
suant to Rule 32 of the General Admiral-
ty Rules, 28 U.S.C.A., directing the peti-
tioner to produce and permit the claim-
ants and their proctors to inspect, copy or
photograph a large number of docu-
ments believed to be pertinent and rele-
vant to the proceeding.

[1] I am mindful that this motion
was impelled by the concern of proctors
for the claimants with their very grave
responsibilities to the families of the
deceased crewmen and officers, three of
whom are the object of cross-libels.
However, a considerable amount of dis-
covery and inspection has already been
allowed the claimants. It appears that
search for many of the papers demanded,
as for instance petitioner's bunkering
schedules and sailing letters to masters
for all voyages, would put the petitioner
to extreme inconvenience. Under these
circumstances I am obliged to consider
the doubtful prospects of such a search
both as to the papers that might be found
and as to the probable evidentiary value
of their contents if found.

[2] Taking all these factors into ac-
count, it is my conclusion that, in addi-
tion to the discovery already allowed and
that proposed to be allowed, by the peti-
tioner, the following information shall be
provided to the claimants:
145 F.Supp.-39%


v. SMRHA 617
.Supp. 617
1. A list of all the hull repairs per-
formed on the vessel.
2. The cargo plans with respect to
all voyages of the vessel on which ore
cargoes were carried.
3. The bunkering schedules for the
last voyage of the vessel.
4. The draft on departure from the
last port before the loss of the vessel.
5. All reports made by the petition-
er's agents, servants or employees with
respect to the loading of the cargo which
the vessel carried on her last voyage from
Brazil.
6. Any written data which the peti-
tioner may have concerning the vessel's
metacentric heights on voyages on which
ore was carried.
Submit order on notice.



0 E Y mUMBE SYSTEM
'^'w^^^


J. H. BAUMANN and Marguerite Marie
Jacobson, Plaintiffs,
v.
Robert V. SMRHA, as Chief Engineer of
the Division of Water Resources of the
Kansas State Board of Agriculture, De-
fendant,
and
City of Wichita, Kansas, Intervener.
Civ. A. No. T-1228.
United States District Court
D. Kansas.
April 30, 1956.


Action for a declaratory judgment
that the Kansas Water Appropriation
Act violates Fourteenth Amendment to
Federal Constitution, an injunction re-
straining the Chief Engineer of the Divi-
sion of Water Resources of the Kansas
State Board of Agriculture from enforc-
ing or operating under such Act, and an
order requiring him to revoke all water.


---V~~i






618 145 FEDERAL

permits, vested right orders or other ac-
tions and decisions taken or entered by
him pursuant to the Act. The City of
Wichita intervened. On oral motions
by plaintiff and defendant for summary
judgment, the District Court, Phillips,
Circuit Judge, held that the act is con-.
stitutional.
Judgment for defendant and inter-
venor.
Judgment affirmed 77 S.Ct. 96.


1. Federal Civil Procedure 02547
An allegation in complaint that mat-
ter in controversy exceeds jurisdictional
sum or value of $3,000, exclusive of in-
terest and costs, is admitted on defend-
ant's motion for summary judgment.
2. Waters and Water Courses s128
A state has power to modify or re-
ject doctrine of riparian rights as un-
suited to conditions in state and to put in
force doctrine of prior appropriation and
application to beneficial or reasonable

3. Waters and Water Courses C-146
A landowner has no vested right in
underground waters not appropriated
and applied to beneficial use by him.
4. Waters and Water Courses =128
The state of Kansas could properly
apply doctrine of prior appropriation of
waters and application thereof to bene-
ficial use to unused and unappropriated
waters by Kansas Water Appropriation
Act, where it recognized and afforded
protection to rights acquired by land-
owners at time of its effective date to
appropriate and use water. G.S.Kan.
1949, 82a-701 et seq.

5. Constitutional Law C-92, 209, 278(1)
There is no vested right in a court's
decisions, and a change thereof does not
deprive one of equal protection of laws
or property without due process of law.
U.S.C.A.Const. Amend. 14.

6. Constitutional Law C-278(1)
Though decisions of a state court
have established a rule of property, de-
parture therefrom in subsequent deci-


SUPPLE IT


sion does not constitute deprivation of
property without due process of law
under Fourteenth Amendment to Con-
stitution. U.S.C.A.Const. Amend. 14.
7. Constitutional Law '=209
The Fourteenth Amendment to Con-
stitution, in guaranteeing equal protec-
tion of laws, does not assure uniformity
of judicial decisions or immunity from
judicial error. U.S.C.A.Const. Amend.
14.
8. Common Law 2=11
A state legislature may change :a
common-law principle and abrogate
court decisions made thereunder when
necessary, in legislature's opinion for
public welfare.
9. Waters and Water Courses =2128
Accomplishment of ends of utilizing
all available water beneficially and with-
out waste in arid and semi-arid regions
of west is within competency of state
legislature.
10. Constitutional Law C-2211, 278(1)
Waters and Water Courses 0-128
The Kansas Water Appropriation
Act is constitutional as satisfying due
process and equal protection require-
ments of Fourteenth Amendment, though
it does not provide for notice of hear-
ings before or actions by chief engineer
of Water Resources Division of State
Board of Agriculture on applications for
water permits to persons who may bl
adversely affected by granting thereof,
as such permits must be granted subject
to valid existing vested rights and prior
water appropriations and act provide'
for protection of such rights by action-,
for damages or injunction. G.S.Kan
1949, 82a-701 et seq., 82a-704, 82a-70,.
82a-712, 82a-716.


Kenneth G. Speir, Vernon A. Stroheri'.
Herbert H. Sizemore, and Richard I
Hrdlicka, Newton, Kan., for plaintilft.
Harold R. Fatzer, Atty. Gen., for t(1'
State of Kansas.
Paul E. Wilson, Asst. Atty. Gen., :,0
Warden L. Noe, Sp. Asst. Atty. Gen,, il'
defendant.








SBAUMANN
Cite as 145 1
Fred W. Aley, Robert B. Morton, and
Paul J. Donaldson, Wichita, Kan., for in-
tervenor, City of Wichita, Kan.
Daniel R. Hopkins, Garden City, for
Finney County Water Users Ass'n, South
Side Irr. Co., Kearny County Farmers
Irr. Ass'n, Garden City Ditch Co., United
States Irrigating Co., and Earl C. Brook-
over, amici curie.
Arno Windscheffel, Smith Center,
Kan., for Kirwin Irr. Dist., amicus curie.
N. J. Ward, Belleville, Kan., for Kan-
sas Bostwick Irr. Dist., amicus curiae.
Before HUXMAN and PHILLIPS,
Circuit Judges, and MELLOTT, District
Judge.

PHILLIPS, Circuit Judge.
This action was instituted on Au-
gust 16, 1955, in the above court, by J. H.
Baumann and Marguerite Marie Jacob-
son, plaintiffs, under the provisions of
28 U.S.C. 1331, 2201, 2281 and 2284,
against Robert V. Smrha, defendant,
Chief Engineer of the Division of Water
Resources of the Kansas State Board of
Agriculture. This action arises under
the Fourteenth Amendment to the Con-
stitution of the United States.
The action was brought for the pur-
pose of obtaining a declaratory judg-
ment that the Kansas Water Appropria-
tion Act of 1945, G.S.1949, Ch. 82a, Art.
7, hereinafter referred to as the Act,
violates the Fourteenth Amendment to
the Constitution of the United States,
ind is, therefore, null and void; for an
injunction restraining the defendant
from enforcing, operating under, or ex-
rcuting said Act; and requiring defend-
:nit to revoke and nullify any and all
permits, vested right orders, or other
mat ions and decisions heretofore taken or
ntereld by him under or pursuant to
a:iid Act. On September 9, 1955, an
rdhlcr was entered in the case, constitut-
ing a three-judge court. On September
1., 1955, the defendant filed a motion to
qiash the summons and dismiss the ac-
Gn on the grounds: (1) the court does
I,"t Ihave jurisdiction of the defendant:
12) that the court does not have jurisdic-


v. SMRHA 619
F.Supp. 617
tion of the subject matter of the action;
and (3) that the complaint does not state
a cause of action. On October 13, 1955,
the City of Wichita, Kansas, hereinafter
referred to as the City, with the leave
of court, intervened in the action and
filed an answer. Pursuant to an order
entered on September 26, 1955, a hear-
ing was had before the three-judge court
on October 21, 1955. At this hearing it
was agreed that the court would not at-
tempt to adjudicate any liability of the
City to the plaintiffs. Certain irrigation
districts and Earl C. Brookover were
granted leave to file briefs as "friends
of the Court" in support of the defend-
ant's position that the statute is valid.
The Committee of Kansas Farm Organ-
izations was also granted leave to file
a brief as a "friend of the Court" in sup-
port of plaintiffs' contention. Certain
facts were stipulated and certain ex-
hibits were introduced in evidence.. The
parties then agreed in open court that
there no longer remained any contro-
verted issue of fact and both plaintiffs
and defendant orally moved for summary
judgment.
The motions for summary judgment
were orally argued. Written briefs have
been filed and the motions now stand sub-
mitted.
The material facts are as follows:
The plaintiff, J. H1. Baumann, is the
life tenant, and the plaintiff, Marguerite
Marie Jacobson, is the remainder owner
of the fee title to certain lands situated
in Harvey County, Kansas, on the south
boundary line of said county, three miles
west and two miles north of the Town of
Bentley; to wit, the southwest quarter
of Section 32, Township 24 South, Range
2 West of the Sixth Principal Meridian.
The title to such lands, now owned by
plaintiffs, passed from the United States
into private ownership during the year
1880 and the plaintiff, Baumann, ac-
quired it in 1930.
Such lands are located in what is
known as the "Equus Beds." a geological
formation containing water of a quantity
suitable for domestic, municipal, irriga-
tion, and other purposes. The Equus


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145 FEDERAL SUPPLES.L A


Beds is a ground water reservoir com-
posed of extremely permeable gravel and
sand, occupying the channel of an ances-
tral Smoky Hill River, which flowed into
an ancestral Arkansas River. Such Beds
cover an area extending approximately
55 miles north and south between Wichi-
ta and Lindsborg and approximately 25
miles east and west and locatedprincipal
ly in the Counties of Sedgwick, Harvey,
and McPherson, in the State of Kansas.
The ground water within the reservoir
moves generally toward the Little Arkan-
sas River, except in the northern part,
where there is a movement toward the
Smoky Hill River. There has been and
now is a "draw-down" of the water table
under plaintiffs' lands. Such Beds pro-
vide natural sub-irrigation for plain-
tiffs' lands and plaintiffs have been arnd
are using Eouus Beds water for domestic

It has been estimated on the basis of
test drilling that the part of this ground
water reservoir between the Towns of
McPherson and Valley Center contained
millions of acre feet of water in storage
under natural conditions. This ground
water is recharged chiefly by direct re-
cipitation. Detailed studies made from
938 to 1944 showed that most of the
natural discharge from the ground water




In 1940, the City acquired by purchase
for municipal water supply 25 five-acre
well sites in Harvey County, located
three to ten miles east and northeast of
plaintiffs' lands and thereafter the City
purchased other well sites. Thereafter,
the City drilled and equipped water wells
thereon and commenced pumping water
therefrom for use by the inhabitants of
the City and its environs. The water
levels of the Equus Beds have declined
since the City drilled wells in 1940 and
the water table might have declined as
much as four feet withoutuming, be-
cause of drought, but the rest of the de-
cline must be attributed to pumping,
chiefly by the City.


At present there are more than 2oi
water wells in addition to the City's wells
that are located in the general area of
plaintiffs' lands, at least 14 being located
nearer to plaintiffs' lands than any of the
City's wells. Since 1945, the operation.:
of the City and others, pursuant to cetr-
tain permits and orders issued by the de.
fendant, have withdrawn and are with-
drawing water from the Equus Beds.
The defendant is the duly appointed,
qualified and acting Chief Engineer of
the Division of Water Resources of the
Kansas State Board of Agriculture, and
is the official charged with certain duties
and authorities in connection with the
administration of the Act.
By reason of the operations of the
City, pursuant to said permits and orders
of defendant, plaintiffs' lands have been
affected to a considerable extent and will
continue to be more seriously affected if
said City is permitted to continue to
withdraw water from under plaintiffs'
lands. From January, 1~2, to october
1, 1954, the water table.under plaintiffs'
lands declined approximately four feet.
From October 1, 1954, to July 1, 1955, the
water table level under plaintiffs' lands
and other lands in the same general area
remained almost constant. The water
table under all lands in the same general
area similarly declined.
The Kansas legislature has taken cog-
nizance of apparent damages to landown-
ers by reason of granting permits for
appropriating water for beneficial use
and of questions of the constitutionality
of the Act, arising because of inadequate
provisions as to notice to and for com-
pensation of landowners and persons
owning vested water rights. The Kansas
Legislative council reported that proce-
dural aspects of the Act needed correc-
tion to insure notice and hearing.
The people who depend upon the Equus
Beds for water have the immediate prob-
lems which accompany increasing use
of any reservoir-water holes have gone
dy, shallow wells have een deepened,
many wells now obtain water of poorer
uh'1Y, and some crops have undoubtedly
been reduced in area where the water


~~r~~x~aaMwLMPmrra3~-L8;r~*~~Ru~ll~i~









BAUMANN v. SMRHA
Cite as 145 F.Supp. 617


table was once near enough to the surface
to be reached by the plants.
At the end of 1951, the water table
was higher throughout the well-field
area than at the end of 1954, and at the
end of that wet year, it was significantly
lower than in 1940. throughout an area
of 45 square miles, and the decline ex-
ceeded 10 feet in an area of 11 square
miles, and in certain locations 20 feet.
This area of depression had been ex-
panding and deepening ever since pump-
ing began in 1940, partly because of the
progressive increase in pumpage from
1940 to 1951.
Plaintiffs' land is located in the City's
proposed and pending well-field applica-
tion for 25,000 additional acre feet of
water per year.
[1] It is alleged in the complaint
that the matter in controversy exceeds
the sum or value of $3,000, exclusive of
interest and costs. On motion for sum-
mary judgment, that allegation stands
admitted,1 and it does not affirmatively
appear from the complaint that the value
of the right which the plaintiffs seek to
protect does not exceed $3,000, exclusive
of interest and costs.
The Act, in part, reads as follows:
"82a-701. Definitions. When
used in this act the following words
shall have the following respective
meanings:
"(a) 'Person' shall mean and in-
clude a natural person, a partner-
S ship, an organization, a corporation,
a municipality and any agency of
the federal government.
"(b) 'Chief engineer' means the
chief engineer of the division of
water resources of the Kansas state
board of agriculture.
"(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.

I. Safeway Stores v. Wilcox, 10 Cir., 220
F.2d 661; Harris v. Railway Express
Agency* 30 Cir., 178 F.2d 8; Furton v.


"(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 pas-
sage of this act or within three years
prior thereto to the extent of the
existing beneficial use made thereof,
and shall include the right to take
and use water for beneficial pur-
poses where a person is engaged in
the construction of works for the
actual application of water to a bene-
ficial use at the time of the passage
of this act, provided such works shall
be completed and water is actually
applied for such use within a reason-
able time thereafter.
"(e) 'Appropriator' means and in-
cludes a person who obtains a per-
mit from the chief engineer author-
izing him to divert and apply an al-
loted quantity of water for a desig-
nated beneficial use and who makes
actual use of the water for such
purpose.
"(f) 'Appropriation' means and
includes an amount of water au-
thorized and allotted by the chief
engineer for a designated beneficial
purpose within specific limits as to
quantity and rate of diversion and
withdrawal.
"82a-702. Dedication of use of
water. All water within the state
of Kansas is hereby dedicated to the
use of the people of he state s-
ject to the control and regulation of
the state in the manner herein pre-
scribed.
"82a-703. Water may be appro-
priated subject to vested rights.
Subject to vested rights, all waters
within the state may be appropriat-
ed for hbneficial use as herein nro-
vided Nothing in this act cnn-
tained shall impair the vested right
of any person except for nonuse.
"82a-704. Order establishing
rights of persons making beneficial

City of Mennslia, 7 Cir., 149 F.2d 945,
certiorari denied 326 U.S. 771, 66 S.Ct.
176, 90 L.Ed. 460.


- -------------------------


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145 FEDERAL SUPP"MENT


use of waters as of June 28, 1945;
notice; time for appeals to district
court. As soon as practicable after
the passage of this act, the chief
engineer or his authorized repre-
sentatives shall proceed with the
necessary steps to gather data and
other information as may be essen-
tial to the proper understanding and
determination of the vested rights
of all parties using water for bene-
ficial purposes other than domestic.
Such observations and measure-
ments shall be reduced to writing
and made a matter of record in his
office.
"The chief engineer shall then
make an order determining and es-
tablishing the rights of all persons
making beneficial use of water o the
effective date of this act and the
then extent of their uses and shall
notify all such work [water] users
as to the contents of such order.
Service of such notice shall be
deemed complete upon depositing
such notice in the post office as
registered mail addressed to such
water user at his last known post-
office address. The order of deter-
mination of the chief engineer shall
be in full force and effect from the
date of its entry in the records of
his office unless and until its opera-
tion shall be stayed by an appeal
therefrom by such user to the dis-
trict court of the county in which the
point of diversion of such use is
located. All such appeals from the
order of the chief engineer must be
filed within sixty days after posting
and mailing of the notice of such
order of determination.
"82a-705. Permit to acquire an
appropriation right to water. No
person shall have the power or au-
thority to acquire an appropriation
right to water without first obtain-
ing the approval of the chief en-
gineer: Provided, however, That
this section shall not apply to per-
sons using water for domestic uses.


"82a-706. Duties of chief en-
gineer as to rights of priority of ap-
propriation. The chief engineer is
hereby authorized 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 bene-
fits and beneficial uses of all of its
inhabitants in accordance with tht
rights of priority of appropriation.
"82a-707. Principles governing
appropriations. (a) Surface or
ground waters of the state may be
appropriated as herein provided.
Such appropriation shall not con-
stitute 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
order, namely: Domestic, municipal,
irrigation, industrial, recreational
and water power uses. (c) As be-
tween appropriators. the first in ime
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 engineer. (d) Appropriation
in excess of the reasonable needs of
the appropriators shall not be al-
lowed.
"82a-708. Determination of pri-
orities of right of applicants for per-
mits; appeals. The chief engineer
shall determine the priorities of
right to the ue f h water of te
state, as to all persons who have
since May 5, 1941, and who shall
hereafter make application for a
permit or certificate to divert, ap-
propriate and use water. An ap-
peal may be taken from any decision
or order of the chief engineer to the
district court in the county of his
official residence or in the county
in which the point of diversion is
located. All such appeals must be
filed within thirty days after date
of such decision or order."


622-


.s*nar~Pa&ai;P;zx~rm*aappre~R1*~aarJa







BAUMANN v. SMRHA
SCite as 145 F.Supp. 617


Section 82a-709 provides that every
person intending to acquire an appropria-
tion right to any of the waters of the
State for beneficial use, other than do-
mestic, may do so by making an applica-
tion to the Chief Engineer for a permit
to make such appropriation. It enu-
merates what shall be set forth in the ap-
plication.
Section 82a-710 provides that upon the
receipt of the application, the Chief En-
gineer shall endorse thereon the date
and assign a number thereto.
Section 82a-711 provides that it shall
be the duty of the Chief Engineer to
approve all applications made in proper
form which contemplate the utilization
of water for beneficial purposes, pro-
vided the proposed use does not conflict
with an existing use, and provided the
proposed use does not prejudicially and
unreasonably affect the public interest.
It does not provide for any notice to
third persons whose rights may be ad-
versely affected by the appropriation of
water by the permitted.
Section 82a-716 provides:
"Common law claimants; action
for compensation; injunctions by
appropriators. If any appropria-
tioor the construction and opera-
tion of authorized diversion works
results in an injury to any common-
law claimant, such person shall be
entitled to ue compensation n a
suitable action at law aains t e
appropriator for damages proved
for any nronertv tfken. An a -
propriator who has acquired a valid
right under this statute may pre-
vent, by injunction, a subsequent
diversion by a common-law claimant
of private rights without being re-
quired to first condemn possible pri-
te rights. An appropriator shall
have right to injunction relief to pro-
tect his prior right of beneficial
use as against use by an appropria-
tor with a later priority of right."
Section 82a-717 provides:
"Beneficial purpose; termination
for nonuse. All appropriations of


623


water must be for some beneficial
purpose. The right of the appro-
priator and his successors to 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 certifi-
cate."
Whether this is an action against the
State depends upon whether the chal-
lenged Act is constitutional. If it is
unconstitutional, the Chief Engineer is
acting as an individual and not as an
agent or instrumentality of the State.
In the recent case of Georgia Railroad
& Banking Co. v. Redwine, 342 U.S. 299,
304, 305, 306, 72 S.Ct. 321, 324, 96 L.Ed.
335, the court said:
"This Court has long held that a
suit to restrain unconstitutional ac-
tion threatened by an individual who
is a state officer is not a suit against
the State.
*
"Since appellant seeks to enjoin
appellee from a threatened and al-
legedly unconstitutional invasion of
its property, we hold that this ac-
tion against appellee as an individu-
al is not barred as an unconsented
suit against the State. The State is
free to carry out its functions with-
out judicial interference directed at
the sovereign or its agents, but this
immunity from federal jurisdiction
does not extend to individuals who
act as officers without constitutional
authority.
"Accordingly, we find that the Dis-
trict Court was not deprived of ju-
risdiction in this case on either the
ground that it is a suit against the
State *"
Prior to the enactment of the Act, the
Supreme Court of Kansas in many deci-
sions had recgnied the anlibiit in
Kansas of the doctrine of riparian rights.
In State ex rel. Peterson v. Kansas State
Board of Agriculture, 158 Kan. 603, 149
P.2d 604, at page 608, the court said:
"Under the above authorities un-
derground waters are part of the





624 145 FEDERAL

real )erty in which they are sit-
uatea. The owner of land may con-
veyor grant the underground water,
or the right to take it from te
land, by an appropriate instrument
in writing t the same extent that
e might convey or grant any other
portion of the real property; or a
party, having the right of eminent
domain, may appropriate under-
ground water to his use by condem-
nation proceedings."
However, in the subsequent case of
State ex rel. Emery v. Knapp, 167 Kan.
546, 207 P.2d 440, at page 447, the court,
in construing the Act here in question, in
part. said:
"We next observe that no com-
plaint is made of section 702, which
declares: 'All water within the state
of Kansas is hereby dedicated to the
use of te eole of the state, sub-
ject to the control and regulation of
the state in the manr 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 ap-
proach them upon the basis of the in-
terest of the people of the state
without losing sight of the beneficial
use the individual is making or has
the right to make of the water.
Unused or unusable rights predi-
cated alone unnn theory hpremp nof
little if any importance. Broad
statements 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

2. Katz v. Walkinshaw, 141 Cal. 116, 70 P.
663, 74 P. 760, 64 L.R.A. 236; Murphy
v. Kerr, D.C.N.M., 296 F. 536. See, also,
Bassett v. Salisbury Mfg. Co., 43 N.H.
569; Meeker v. City of East Orange,


SUPPLEMENT

with diminution or alteration'
Shamleffer v. Council Grove Peerless
Mill Co., 18 Kan. 24, must be disre-
garded or modified to harmonize with
this declaration. The chan e is ain
appropriate one for the legislature
to make. Individuals (o no6 livc
alone in isolated areas where they,
at their will, can assert all of their
individual rights without regard to
the effect upon others."
It should be observed that the Act rec-
ognizes and affords protection to vestcd
rights. Section 82a-704 provides for the
determination of such rights by th,
Chief Engineer and for a review of his
action by appeal to the appropriate state
district court. Section 82a-708 provides
for the determination of priorities of
rights of applicants for permits by th,
Chief Engineer and for a review of his
determinations by appeal to the appro-
priate state district court.
It is true that the Act does not pro-
vide for notice to persons, who may be
adversely affected by the granting of a
permit, of the hearing or of the action
by the Chief Engineer upon applications
for permits. However, permits are nec-
essarily granted subject to valid existing
vested rights and to prior appropriations,
and provision for the protection of those
rights, either by actions for damages or
for injunction, is carefully made by Sec-
tions 82a-712 and 82a-716.
[2] The power of a state either to
modify or reject the doctrine of riparian
rights because unsuited to the conditions
in the state and to put into force the doc-
trine of prior appropriation and applca-
tion to beneficial use or of reasonable use
has long been settled by the adjudicated
cases.3
[3] Of course, such a modification in
the law of the state must recognize valid
existing vested rights, but we do not re-
gard a landowner as having a vested right

77 N.J.L. 623, 74 A. :179, 25 L.R.A.,
N.S., 465; Erickson v. C)okston Water-
works, Power & Light Co., 100 Minn.
481, 111 N.W. 391, 9 L.R. L.,N.S., 1250.


.,~,~sarmwsa~~-r-r~.ahaamrtenrr~ccc~"Y I~OI~Prr~`~







BAUMANN
Cite as 145 F
in underground waters underlying his
land which he has not appropriated and
applied to beneficial use.3
[4] We hold that the state could
properly apply the doctrine of prior ap-
propriation and application to beneficial
use to unused and unappropriated waters
so long as it recognized and afforded pro-
tection to rights which landowners had
acquired at the time of the effective date
of the Act to appropriate and use water.
Whether such a change in the law of
Kansas is contrary to earlier decisions of
the Supreme Court of Kansas, it is cog-
nizant with the latest decision of the
Supreme Court of Kansas in State ex rel.
Emery v. Knapp, 167 Kan. 546, 207 P.2d
440, which must be regarded as having
overruled the earlier cases. '
[5] There is no vested right in the
decisions of a court and a change of de-
cision does not deprive on f eaual pro-
tection of the laws or property without
due process of law,4
[6] Even though prior decisions of
a state court have established a rule of
property, a departure therefrom in a
subsequent decision does not, without

3. Kate v. Walkinshaw, 141 Cal. 116, 70
P. 663, 74 P. 766, 771, 64 L.R.A. 236.
4. Sunray Oil Co. v. Commissioner, 10 Cir.,
147 F.2d 962, 963, certiorari denied 325
U.S. 861, 65 S.Ct. 1201, 89 L.Ed. 1982;
Cooper v. Commissioner, 4 Cir., 197 F.2d
951, 953; Carolina-Virginia Racing
Ass'n v. Cahoon, 4 Cir., 214 F.2d 830,
832.
O'Neil v. Northern Colorado Irrigation
Co., 242 U.S. 20, 26, 27, 37 S.Ct. 7, 61
L.Ed. 123.
6. Milwaukee Electric R. & Light Co. v.
State of Wisconsin ex rel. City of Mil-
waukee, 252 U.S. 100, 106, 40 S.Ct. 306,
64 L.Ed. 476; Riley v. Worcester Coun-
145 F.Supp.-40


v. SMRHA 625
.Supp. 617
more, constitute a deprivation of proper-
ty without due process of law under the
Fourteenth Amendment.5

[7, 8] The Fourteenth Amendment in
guaranteeing equal protection of the laws
does not assure uniformity of judicial
decisions or immunity from judicial er-
ror.6 Likewise, it is well settled that a
legislature may change the principle of
the common law and abrogate decisions
made thereunder when in the opinion of
the legislature it is necessary in the pub-
lic welfare.'

[9] Adequate water supply is a ne-
cessity. In the arid and semi-arid re-
gions of the West it is imperative that
all available water be utilized beneficially
and without waste. The accomplishment
of those ends is well within the compe-
tency of the legislature.
Plaintiffs have not seen fit to invoke
the remedies afforded them by the Act.
Those remedies are adequate, we think,
to afford protection to any vested rights
of the plaintiffs.

[10] We conclude that the Act is
constitutional.

ty Trust Co., 1 Cir., 89 F.2d 59, 66, af-
firmed 302 U.S. 292, 58 S.Ct. 1S5, 82 L.
Ed. 268.
7. United States v. United Shoe Machin-
ery Co., 8 Cir., 264 F. 138, 151, appeal
dismissed 254 U.S. 666, 41 S.Ct. 217, 65
L.Ed. 465, affirmed 258 U.S. 451, 42 S.
Ct. 363, 66 L.Ed. 708, rehearing denied
259 U.S. 575, 42 S.Ct. 585, 66 L.Ed. 1071;
Silver v. Silver, 280 U.S. 117. 50 S.Ct.
57, 74 L.Ed. 221; Shea v. Olson, 1S5
Wash. 143, 53 P.2d 615, 111 A.L.R. 998;
Pringle v. Gibson, 135 Me. 297, 195 A.
695, rehearing denied 135 Me. 512, 197 A.
553; Komorowski v. Boston Store of Chi-
cago, 341 Ill. 126, 173 N.E. 189.




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