Title: Raymond H. Baeth and Ann C. Baeth v. Milo W. Hoisveen - Supreme Court of North Dakota, March 28, 1968
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Permanent Link: http://ufdc.ufl.edu/WL00004456/00001
 Material Information
Title: Raymond H. Baeth and Ann C. Baeth v. Milo W. Hoisveen - Supreme Court of North Dakota, March 28, 1968
Physical Description: Book
Language: English
Publisher: 157 North Western Reporter, 2d Series
Spatial Coverage: North America -- United States of America -- Florida
Abstract: Jake Varn Collection - Raymond H. Baeth and Ann C. Baeth v. Milo W. Hoisveen - Supreme Court of North Dakota, March 28, 1968 (JDV Box 86)
General Note: Box 22, Folder 3 ( Court Cases of Water Rights in States Other Than Florida - 1990 ), Item 19
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00004456
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Raymond H. BAETH and Ann C. Baeth,
Mile W. HOISVEEN, as State Engineer for
the State of North Dakota; and Governor
William L. Guy, Richard P. Gallagher,
Henry J. Stelnberger, Gordon Gray, Arnie
Dahl, Russell Dushinske, Harold R. Han-
son, Constituting the State Water Commis-
sion, an Administrative Agency of the
State of North Dakota, Defendants.
Civ. No. 8417.

Supreme Court of North Dakota.
March 28, 1968.

Landowners brought action under the
Declaratory Judgment Act asking that stat-
ute controlling use of underground water,
since repealed, be construed so as not to
interfere with landowners' vested rights to
use underground water on their land. The
District Court of Burleigh County, Clifford
Jansonius, J., certified question of constitu-
tionality of statute regulating use of under-
ground water. The Supreme Court, Paul-
son, J. (on reassignment), held that land-
owners acquired no vested rights in under-
ground waters, of which they made no use,
prior to legislative enactment claiming such
water for public use, and that statute con-
trolling use of underground water did not
violate provisions of either federal or state

Questions certified by the District
Court answered in the affirmative and case

I. Public Lands :l 14(3)

Waters and Water Courses 4&9

Under Desert Land Act of 1877 patents
of federal lands subsequent to the date of
the Act do not pass title to any appurtenant
water rights, but such water rights are to be
determined by laws of respective states. 43
U.S.C.A. 321 et seq.

2. Waters and Water Courses C=128
1905 statute gave Legislature's approval
of doctrine of prior appropriation based on
public ownership. Laws 1905, c. 34, 1.

3. Waters and Water Courses =l100, 101
Landowner of premises overlying
ground water, be it percolating or in more
or less well-defined stream, acquires vested
usufructuary right following withdrawal
and application of ground water to bene-
ficial use.

4. Waters and Water Courses &=100, 101
There is no absolute ownership or
vested right of ground water underlying
land which has not actually been diverted
and applied to beneficial use.

5. Waters and Water Courses <=127
General welfare requires that water
resources be put, to fullest extent capable,
to beneficial use.

6. Waters and Water Courses 4=l128
Legislative intent in regard to vested
right was to consider only beneficial use of
ground water prior to enactment of statute.
NDCC 61-01-01.1, 61-01-02.

7. Waters and Water Courses 4=128

Declaration that all waters in the state
belong to public and may be appropriated
through proper administrative procedure is
valid exercise of state's police power, inso-
far as it does not expropriate vested rights.
NDCC 61-01-01.

8. Eminent Domain C2(10)
Since vested right to use of ground
water is usufructuary right, existence of
which is contingent upon application of
underlying water to beneficial use, statute
limiting right to use water does not ex-
propriate any vested right of landowners
who have not previously applied water to
beneficial use. NDCC 61-01-01.


728 N. D.

Cite as 157 N.W.2d 728

9. Waters and Water Courses e128
Necessity to preserve general welfare
by conserving water is valid basis of statute
controlling use of water. NDCC 61-01-01.

10. Constitutional Law <=93(1)
Since landowners were not applying
water underlying their land to beneficial use
prior to enactment of statute regulating
use of water, they did not have such vested
right in use of water as would be protected
by either the United States or the North
Dakota Constitution. U.S.C.A.Const.
Amend. 14; Const. 14.

II. Waters and Water Courses =128
Statute controlling use of water is rea-
sonable regulation for public good, is within
state police power and does not deprive
landowners of constitutional rights. U.S.
C.A.Const. Amend. 14; Const. 14.

12. Waters,and Water Courses C=133
Water commission acted improperly in
granting to one of two adjoining landown-
ers, both of whom made application at ap-
proximately same time, use of so much
water that the other was in effect denied
use of any water. NDCC 61-01-01.1, 61-

Syllabus by the Court

Section 61-01-01 of the North Dakota
Century Code constitutes a reasonable ex-
ercise of the police power of the State and
thus does not violate the Fourteenth Amend-
ment to the Federal Constitution, nor does
it violate Article I, Section 14, of the North
Dakota Constitution.

Thompson, Lundberg & Nodland, Bis-
marck, for plaintiffs.

Helgi Johanneson, Atty. Gen., and Clif-
ford Jochim, Asst. Atty. Gen., Bismarck,
for defendants.
157 N.W.2d-46%

PAULSON, Judge (on reassignment).

This matter comes to us pursuant to the
provisions of Chapter 32-24 of the North
Dakota Century Code, upon a question of
law certified by the district court of Bur-
leigh County, North Dakota. The action
was originally brought under the Declara-
tory Judgments Act (Ch. 32-23, N.D.C.C.),
asking that the plaintiffs' rights as owners
of the land overlying underground water
in a well-defined stream be adjudicated,
and that Section 61-01-01, N.D.C.C., and
Section 47-01-13, N.D.C.C., which has
since been repealed, be construed by the
court so as not to violate certain inchoate
"rights" of the plaintiffs. During the
course of the trial the following question of
law, which was answered in the negative by
the trial court, was certified to this court:

"Is Section 61-01-01 of the North
Dakota Century Code constitutional as
applied to require compliance to Chapter
61-04 of the North Dakota Century Code
where the following facts are stipulated:

"a. Individual (plaintiff) is with-
drawing water for irrigation of overly-
ing land owned by himself.

"b. Individual (plaintiff) holds title
to overlying land by continuous chain
of private ownership title dating back
to patent from the United States Gov-
ernment dated November 4, 1898.

"c. Individual (plaintiff) purchased
title to overlying land by Warranty
Deed dated June 18, 1951, free and
clear of all encumbrances."

Further pertinent stipulations of fact are
as follows:

That in 1877, or prior thereto, the
Territory of Dakota enacted Civil Code
Section 255, declaring that the surface
owner of real property owns the percolat-
ing waters lying beneath, and that said
statute was incorporated into the laws of

N.D. 729

~3_ r a an 1;


the State of North Dakota at the time of
Statehood in 1889;
That the United States of America
issued a patent to the Northern Pacific
Railroad conveying all right, title and
interest in the property in question to the
Northern Pacific Railroad on the 4th day
of November 1898;
That between the dates of November 4,
1898, and June 18, 1951, the property in
question remained under ownership of
private individuals, and was purchased
on June 18, 1951, by the plaintiffs in the
instant case and has been held by them
continuously to date;

That in the year 1955, the State of
North Dakota specifically declared that
all waters under the surface of the earth
whether such waters flow in defined sub-
terranean channels or are diffused per-
colating underground waters, belong to
the public and are subject to appropria-
tion for beneficial use;

That in 1961 the plaintiffs expended
in excess of $10,000 for a well and ir-
rigation equipment located in and upon
the premises in question in order that
they might withdraw the underground
water and apply it to those premises;

That later in 1961 the plaintiffs were
informed by representatives of the State
Water Commission that the waters under
the plaintiffs' land did not belong to the
plaintiffs, but that such waters belonged
to the public generally and could be used
for irrigation purposes only after obtain-
ing a permit from the North Dakota
State Engineer, and that in the absence of
such a permit the plaintiffs had no right
to use the water under their land for
irrigation purposes, and that the with-
drawal of that water without a permit
could result in legal proceedings against
the plaintiffs;

That on June 26, 1961, the plaintiffs
made application for a water permit, re-
questing permission to appropriate 960

acre-feet annually with a withdrawal rate
of 900 gallons per minute;
That a hearing was held on said per-
mit application on January 22, 1962, and
at the hearing a written objection to the
granting of the permit was filed by G. D.
Adams, a neighbor of the plaintiffs who
claimed that granting of the permit would
interfere with his withdrawal of water
under a pending permit application;
That in March 1962 plaintiffs were in-
formed by representatives of the North
Dakota Water Commission that they
could pump without permit for irrigation
purposes as the basis for supplying in-
formation to the State Water Commission
concerning the use of water in the area;
That during the summer of 1963 the
State Engineer recommended that the
plaintiffs restrict their pumping to not
more than 200 gallons per minute and that
failure to comply with such regulation
could result in legal proceedings against
the plaintiffs;

That on June 15 or 16, 1965, the plain-
tiffs received a permit allowing them
to withdraw 200 gallons per minute, or
not to exceed 323 acre-feet annually, and
that, for the purposes of this case, the
waters underlying plaintiffs' land would
be considered to be underground water
moving in a more or less well-defined

[1] Prior to answering the constitution-
al question presented on this certification,
it is appropriate that we review the his-
torical background to the present contro-
versy. The Desert Land Act of 1877 (43
U.S.C.A. 321 et seq.), as construed in
California-Oregon Power Co. v. Beaver
Portland Cement Co., 295 U.S. 142, 55
S.Ct. 725, 79 L.Ed. 1356 (1935), provides
that patents of federal lands subsequent
to the date of the Act shall not pass title
to any appurtenant water rights, but that
such water rights shall be determined by
the laws of the respective States or Ter-
ritories. Under that Act, and California-


730 N. D.

Cite as 157 1
Oregon Power, supra, the present contro-
versy is to be resolved by applying North
Dakota law.

[2] In 1905 the State Legislature passed
the following statute:

"All waters within the limits of the
state from all sources of water supply
belong to the public and, except as to
navigable waters, are subject to appro-
priation for beneficial use." [N.D.S.L.
1905, Ch. 34, 1.]
This statute is the first official indication
of the legislature's approval of the doctrine
of prior appropriation, which doctrine, of
course, must be based upon public owner-
In Larson, The Development of Water
Rights and Suggested Improvements in the
Water Law of North Dakota, 38 N.D.L.Rev.
243, 254-255 (1962), the following state-
ment is made:

"Since water rights constitute property
the states are prohibited from depriving
any person of lawful vested water rights
'without due process of law.' The usual
interpretation of this phrase is to require
a lawful application of the power of emi-
nent domain for a public purpose with
compensation for private property acquir-
ed by the taking. The limitation would
apply directly to the situations where a
state seeks to acquire vested water
rights for its own purposes. The more
controversial application of the limit
arises when a state wishes to change from
one water rights doctrine to another or
when the state seeks to narrow the defini-
tion of a water right. To the extent that
water rights are privately vested, the
courts have often held that they could
not constitutionally be divested without
compensation; protection is derived from
'due process' clauses and from specific
clauses protecting against deprivation of
private property without compensation.
The requirement seems eminently fair
where the individual has actually been
using the water of which he is deprived;

N.W.2d 728

a more perplexing issue is whether com-
pensation ought also to be required for
the divestiture of unused riparian rights."
[Emphasis supplied.]
The first issue to be determined in this
case is pointed out by the preceding quota-
tion: that is, whether a riparian owner
has a "vested right" in waters underlying
his land of which he made no use prior
to the legislative enactment claiming such
waters for the State.

Section 47-01-13 of the North Dakota
Century Code, which was in effect at the
time that this controversy arose and which
had been in effect in the same form since
territorial days, provides, in pertinent part:
"* Water running in a definite
stream formed by nature over or under
the surface may be used by him [the land-
owner] as long as it remains there
*." [Insertion ours.]

This section constituted a legislative
declaration of the property rights of ripari-
an owners. The particular portion of the
section, as above quoted, is at the heart of
the present matter, the question being:
What is the nature of the right granted by
Section 47-01-13, N.D.C.C., and its prede-
In Knight v. Grimes, 80 S.D. 517, 127 N.
W.2d 708, 711 (1964), the South Dakota
Supreme Court stated:
"Beyond doubt there has been an in-
vasion of a pre-existing right or interest.
It seems desirable to clearly focus on the
nature of this right or interest. The no-
tion that this right to take and use perco-
lating water constitutes an actual owner-
ship of the water prior to withdrawal has
been demonstrated to be legally fallaci-
In Volkmann v. City of Crosby (N.D.),
120 N.W.2d 18, this court determined that
the owner of land riparian to underground
waters who had applied such waters to a
beneficial use, acquired a vested right to
that use, and such right could not be taken
without the payment of just compensation.

__ _______


In Volkmann, supra, this court stated, at
page 24:

"In this case, the percolating ground
waters tapped by the Volkmann well were
being withdrawn and put to a reasonable
and beneficial use as heretofore described
before the enactment of Chapter 345,
N.D.S.L.1955. That use constituted an
appropriation and an assertion of a prop-
erty right vested in Andrew Volkmann by
Section 47-01-13 NDCC. St.
Germain Irrigating Co. v. Hawthorn
Ditch Co., 32 S.D. 260, 143 N.W. 124.
In the latter case, it is said:

'The private owner of real estate,
who sinks an artesian well on his prem-
ises, is the absolute owner of the water
flowing therefrom and may control the
whole thereof as he may see fit so long
as he does no injury thereby to others;
the private owner of real estate who
constructs an artificial reservoir on his
premises, in which he collects and re-
tains surface waters wholly on his own
premises, is the absolute owner thereof
and may use and control the whole
thereof as he may see fit so long as he
does no injury thereby to others. The
right to use such waters cannot be thus
confiscated or interfered with by the
state or the public and placed in the
custody and control of a state engineer
any more than could the land itself
upon which such water happened to be.'

"This we quote not with approbation of
all that may be implied therefrom, but to
support the proposition that where a
landowner has applied percolating subter-
ranean water to a reasonable beneficial
use on his overlying land and has thereby
acquired a vested right to that use, the
state may not by subsequent legislation
authorize its impairment or destruction
without compensation."

[3] This quote from Volkmann, supra,
although directly concerned with percolat-
ing ground water, is equally applicable to
underground water in a more or less well-

defined stream. The crux' of the quotation
is that a landowner of premises overlying
ground water, be it percolating or in a more
or less well-defined stream, acquires a vest-
ed right following withdrawal and applica-
tion of said ground water to a beneficial
use. This is commonly referred to as a
usufructuary right.

[4] Thus, we hold that there is no ab-
solute ownership of ground water underly-
ing that land which has not actually been
diverted and applied to a beneficial use.
Thus a landowner does not have a "vested
right" to unused ground water underlying
his land. Knight v. Grimes, supra; Bau-
mann v. Smrha, 145 F.Supp. 617 (D.Kan.
1956), aff'd 352 U.S. 863, 77 S.Ct. 96, 1
L.Ed.2d 73 (1956); Williams v. City of
Wichita, 190 Kan. 317, 374 P.2d 578 (1962),
appeal dismissed, 375 U.S. 7, 84 S.Ct. 46, 11
L.Ed.2d 38 (1963).

[5] South Dakota's history in regard to
water and water rights is very similar to
ours. Both States, as a Territory, came un-
der the provisions of the Desert Land Act,
and both States derived much of their water
law from Section 255 of the Revised Civil
Code of 1877. Both States are largely semi-
arid, and in both States the general welfare
requires that water resources be put, to the
fullest extent capable, to beneficial uses.

[6] In Knight v. Grimes, supra, the
plaintiff, a landowner, brought suit for a
declaratory judgment that certain portions
of the South Dakota Water Code violated
both the United States and the South Da-
kota Constitutions. The South Dakota
statutes involved are very similar to the
statutes being questioned in the instant case.
The Circuit Court of Brookings County dis-
missed the action and the Supreme Court of
South Dakota affirmed that dismissal. The
court determined that the right to unused
riparian percolating waters was not a "vest-
ed right" and that the South Dakota statute
dedicating all waters to the public and con-
ditioning their use upon application to the
chief engineer and the Water Resources

-- I--

732 N. D.

N.D. 733

Cite as 157 N.W.2d 728

Commission was a valid exercise of the
State's police power.
The South Dakota court stated, at 127 N.
W.2d 714:
"Being convinced that the legislature
was justified in believing that the public
welfare requires conservation and preser-
vation of the water supply of the state,
that it is not required that irreparable
damage be done before action can be taken
to conserve and preserve, and that it has
not been shown that the regulations adopt-
ed are unreasonable or arbitrary, the or-
der of the trial court dismissing such ac-
tion is affirmed."

Although the North Dakota Legislature
did not see fit to specifically define a "vest-
ed right" in its 1955 amendment to the
Water Code, it did define the reciprocal
rights of riparian owners in Section 61-01-
01.1, N.D.C.C. (prior to amendment in
1963), as follows:
"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

The Legislature went on to state in Sec-
tion 61-01-02, N.D.C.C.:

"Beneficial use shall be the basis, the
measure, and the limit of the right to the
use of water. *"

Thus it seems clear that the legislative in-
tent in regard to "vested rights" was to
consider only a previous beneficial use of
ground water.

[7,8] A declaration that all waters in
the State belong to the public and may be
appropriated through proper administrative
procedure is a valid exercise of the State's
Police power, insofar as it does not expro-
priate "vested rights". Because the "vest-
ed right" which the plaintiff in the instant
case claims is, in reality, a usufructuary
right, and its existence is contingent upon

application of the underlying water to bene-
ficial use, the legislative exercise of power
embodied in Section 61-01-01, N.D.C.C.,
does not "expropriate" any "vested right"
of the plaintiff.

[9] North Dakota is, in part, a semi-
arid State. Therefore, concern for the gen-
eral welfare could well require that the
water resources of the State be put to bene-
ficial use to the fullest extent of which they
are capable, and that the waste or unreason-
able method of use of water be prevented,
and that the conservation of such water be
exercised with a view to the reasonable and
beneficial use thereof in the interests of the
people and the public welfare. We feel
that the foregoing factors formed the basis
for the legislative enactment of Section
61-01-01, N.D.C.C.

[10] Section 47-01-13, N.D.C.C., prior
to its repeal, was the codification of the
usufructuary right; that is, a right which
became vested upon application to a bene-
ficial use. The plaintiffs in this case were
not applying the water underlying their
land to a beneficial use prior to 1955, and,
therefore, at the time this suit was com-
menced, did not have such a "vested right"
as would be protected by the Fourteenth
Amendment to the United States Constitu-
tion or by Article I, Section 14, of the North
.Dakota Constitution.

[11] Notwithstanding what this court
said in Bigelow v. Draper, 6 N.D. 152, 69
N.W. 570, and in subsequent supporting
decisions which may be construed to the
contrary to what is said in the instant case,
we hold that there is no deprivation of a
constitutional right or rights, and that the
action taken by the legislature in enacting
Section 61-01-01, N.D.C.C., is within the
police power of the State, as a reasonable
regulation for the public good.

[12] In upholding the constitutionality
of Section 61-01-01, N.D.C.C., we do not

lrI i I IM


approve the procedure followed by the
State Water Commission in the instant case,
which resulted in granting to one of two
landowners, who owned adjacent land and
who made application at approximately the
same time for beneficial use of water, the
use of so much water that the other was in
effect denied use of any water. The failure
on the part of the State Water Commission
to determine the actual amount of water
available before granting the first neigh-
bor's application resulted in a very dispro-
portionate granting of water rights. Such a
procedure, if followed in the future, might
well justify legislative action directed to-
ward preventing the reoccurrence of such
inequitable results.

The question certified to this court is an-
swered in the affirmative and the case is
remanded for further proceedings not in-
consistent with this opinion.

STRUTZ and ERICKSTAD, JJ., concur.

TEIGEN, Chief Justice (concurring spe-

I concur in the majority opinion. How-
ever, I wish to point out the subject matter
of the comment contained in the majority
opinion wherein it is stated we do not ap-
prove the procedure followed by the State
Water Commission in the instant case is
not before us because the certified questions
as framed do not include the procedure em-
ployed in administering the law in question.
Although it is true that as a general rule a
law cannot be held unconstitutional because,
while its just interpretation is consistent
with the constitution, it is unfaithfully ad-
ministered by those who are charged with
its execution it is, nevertheless, an equally
well-established principle that a provision
not objectionable on its face may be ad-
judged unconstitutional because of its effect
in operation upon a showing of a fixed and
continuous policy of unjust and discrimina-
tory application by the officials in charge of
its administration.

KNUDSON, Judge (concurring special-
I concur in the syllabus of the opinion
prepared by Judge Paulson but do not agree
with all that is said in the opinion.
Section 61-01-01 is a part of chapter 61
of the North Dakota Century Code headed
"Waters," covering the whole field of the
law on waters, including the laws on irriga-
tion. The foregoing statutory provision
was a part of a comprehensive statute on
irrigation enacted by the Legislative Assem-
bly in 1905, Session Laws 1905, chapter 34,
section 1, and has been retained in subse-
quent compilations and codes, including the
Century Code.
I agree with the majority in their finding
that the statute constitutes a reasonable ex-
ercise of the police power of the state and is
not unconstitutional, and especially so when
considered with all of the other provisions
of the laws governing the regulation and
use of waters for irrigation purposes.
Subject to constitutional guaranties for
the protection of property rights, the pub-
lic authority, under the police power, may
enact and enforce reasonable regulations
in respect of the exercise of the right of
56 Am.Jur. Waters 295 (1947).
I do not believe that in the majority opin-
ion it was necessary to go into a discus-
sion of the questions of the vested rights
and priorities of the several riparian owners
as we ought not to determine those rights
and priorities from the very unsatisfactory
record before us. Such questions should be
resolved only after a full-blown trial, af-
fording all parties the opportunity to pre-
sent all the facts and circumstances in the
However, since the majority has gone into
a discussion of the merits I feel compelled to
comment that the action taken by the Water
Commission may not be within a valid ex-
ercise of the police power, and thus consti-
tutes an unconstitutional application of the

L---~- Il-c-

734 N.D.

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