Title: Summaries of the Water-Law Doctrines of the Seventeen Western States
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Title: Summaries of the Water-Law Doctrines of the Seventeen Western States
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Language: English
Publisher: President's Water Resources Policy Commission
Spatial Coverage: North America -- United States of America -- Florida
Abstract: Richard Hamann's Collections - Summaries of the Water-Law Doctrines of the Seventeen Western States
General Note: Box 12, Folder 9 ( Water Resources Law - Vol #3 - 1950 ), Item 50
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Appedix B

Summaries of the Water-Law

Doctrines of the Seventeen

Western States

These summeries include condensed statements of the principles re-
lating to rights to the use of water for beneficial purposes as developed
by constitutional and statutory provisions and judicial decisions.
They reflect the scope and application of the appropriation doctrine
with respect to watercourses, waters subject to appropriation, the method
or methods of acquiring appropriative rights, preferential use of water,
and conditions under which rights are lost by statutory forfeiture.
For states in which riparian rights are recognized, the summaries
include indications of the degree of recognition, the conflict of riparian
and appropriative principles, and the extent to which conflicts have
been reconciled.
Similarly indicated are principles governing the use of defined under-
ground streams and of percolating waters, together with the statutory
provisions, if any, relating to administrative control over rights to the
use of ground waters. Brief reference is also made to methods of adjudi-
cating water rights and the degree of participation of state officials in
statutory adjudications, and to the public administration of water rights
and distribution of waterto holders of rights of use.
These summaries have been independently prepared by Wells A.
Hutchins, Department of Agriculture.

Appropriations of water may be made under an exclusive procedure
prescribed by statute, the first step being the making of an application
to the State Land Commissioner for a permit to appropriate water,
and' th final step being the issuance of a certificate to the applicant
after he has satisfied all requirements.1 Appropriations for the genera-
tion of hydroelectric energy are subject to certain special limitations;
if the development is to exceed 25,000 horsepower, approval of the
'Ariz. Code Ann. 1939, 75-101 to 75-113. Exclusiveness of statutory
procedure: Tattersfield v. Putnam, 45 Ariz. 156, 174,41 Pac. (2d) 228 (1935);
Parker v. Mcntyre, 47 Ariz. 484, 489, 56 Pac. (2d) 1337 (1936).

application must be authorized by an act of the legislature; and a
certificate for the right to use water for power development must limit
the right to a period of 40 years from the date of application, subject
to a preference right'of renewal underAthe iaws exiting at the time
of expiration of the period.
The general statute governing the, appropriation of water and the
State administrative functions relating to water rights, known as the
State Water Code, was enacted in 1919. According to this statute,
"The water of all sources, flowing in streams, canyons, ravines or other
natural channels, or in definite underground channels, whether peren-
nial or intermittent, flood, waste or surplus water, and of lakes, ponds
Sand springs on the surface," is declared to belong to the public and to
be subject to appropriation for beneficial use.' Unappropriated water
.may be appropriated for domestic, municipal, irrigation, stock watering,
water power, wildlife (including fish), or mining uses, for the personal
use of the appropriator or for delivery to consumers.' The foregoing
uses of water are grouped by the statute according to their relative
values to the public in the following order: First, domestic arid munici-
pal uses, domestic uses to be construed to include gardens not exceeding
one-half acre to each family; second, irrigation and stock watering;
third, water power and mining uses; and last, wildlife uses (including
fish). If applications pending before the commissioner conflict, prefer-
ence must be given according to the relative values to the public of the
proposed uses as so declared.' Furthermore, applications for munici-
pal uses may be approved to the exclusion of all subsequent appropria-
tions if the commissioner determines that the estimated needs of the
municipality so require." Water may be appropriated for projects that
overlap the State boundary line, as well as for those lying entirely within
the State; but the commissioner, at his discretion, may decline to issue
a permit if the proposed point of diversion is within Arizona and the
place of beneficial use is in another state.7 An applicant or any person
whose rights are affected by the commissioner's decision may appeal to
to the superior court.? The water right is forfeited if the holder fails
to exercise it for five successive years.
"Any person," according to the literal terms of the statute, may
appropriate water for the uses above noted;--and "Any person, includ-

SAriz. Code Ann. 1939, 75-106 and 75-111.
'Ariz. Code Ann. 1939, 75-101.
'Ariz. Code Ann. 1939, 75-102.
'Ariz. Code Ann. 1939, 75-102 and 75-106.
*Ariz. Code Ann. 1939, 75-106.
SAriz. Code Ann. 1939, 75-112.
'Ariz. Code Ann. 1939, 75-113.
'Ariz. Code Ann. 1939, 75-101.
SAriz. Code Ann. 1939, 75-102.

ing a municipality, the state, or the United.States," intending to acquire
the right to the beneficial use of water shall apply to the commissioner
for ape~pit.11 However, the ArizonaSupreme Court has held that in
order to appropriate water for irrigation purposes, the appropriator
must be the owner or, possesso of land susceptible of irrigation, and
tha if only a possessor, he must have a present intent and apparent
future ability to acquire ownership of the land."
Arizona water law is free from complications of conflicting riparian
rights, because the riparia doctrine never has been recognized in that
State. The Territorial legislature in 1887 declared that,the "common-
law doctrine or riparian water rights" should not obtain or be of any
force or effect in the Territory,1 and the State constitutional convention
in Jl910 adopted a similar provision for insertion in the ensuing State
constitution.1' In the meantime the Territorial supreme court also
had disapproved of the common-law doctrine," one such decision
havig been affirmed by the United States Supreme Court.0 TheState
supreme court has taken the same position. .
0tound water bowing in "definite underground channels" is subject
to appropriation under the Water Code, as noted, above. Long prior to
that enactment the Territorial supreme court had stated that sub-
tea~ea estreamis flowing in natural, channels between well-defined
bankswvere subject to appropriation under the same rules as those re-
lating to surface streams, but that waters percolating through the soil in
undefined and unknown channels were not subject to appropriation but
belonged to the owner of the soil." T'his view of the ownership status
of percolating water as against an attempted appropriation lias been

Az. CodeAnn. !939, .75-105.:
Tatersfield v. Pvtnam, 45 Ariz. 150, 168-174k,41 Pac. (2d)!228 (1935).
For earlier development of the principle, upon which the court in the Tatters-
fild4,cw rclid,.see Slosser v. Salt River Valley Canal Co., 7 Ariz. A76. 385-386,
65, Pac. 332 (1901); appeal dismissed, 1951U. S. 639 (1904).
"Aria. Rev. Stat. 1887, i 3198. The foundation for this repudiation Of
the riparian doctrine was laid at the f*t Territorial legislative session in 1864;
see Terr. Ariz. Bill of Rights, art. 22, aidiHowell Code, eh. LV, 1 and 3
(October 4, 1864).
:."As. .Qonst art. XVII, 1 1. Arizona was admitted to Statehood Feb-
ruary 14, 1912.
"Clough v. Wing, 2 Ariz. 371, 380-381, 17 Pac. 453 (1888); Chandler v.
Austim, 4 Ariz, 846,350,42ZPc. 483 (1895).
U Boeqilas .Laud & Cattle Co, v. Curti, 213 U, S,::339 (1909); affirming
Beqillas Land & Cattle Cp. v. St. David Cooperative Commercial & Deeslop-
mei$sOtisft,1 Ariz. 128, 135-139,89 Pac. 504 (1907).
"Pima Farms Co. v. Proctor, 30 Ariz. 96, 102, 245 Pac. 369 (1926); Tatters-
field v. Putaat, 45 Aria. 1564165, 41 Pac. (2d) 228 (1935).
"Howard v. Petin, 8 Ariz. 347, 353-354, 76 Pac. 460 (1904); affirmed,
Howard V.Pnrtai 200 U. 8.71 (1906).

consistently held by the Arizona courts," although it does not appear
that in any of the cited cases were the rights'"of, rival owners of lands
overlying a common supply of percolating water ii issue. :ri one of
these decisions there is a dictum favoring the rule of reasonable use.2
In 1948 the legislature enacted a: law (which "may be cited as the
groundwater code of 1948") providing for the regulation of certain uses
of ground water, which specifically "does not include water flowing in
underground streams with ascertainable beds' and ba~ik." Tis act
defines a "critical groundwater areas a ground-water basin or deig-
nated subdivision thereof not having sufficient ground water to provide
a reasonably safe supply for irrigation of the cultivated lands'in the basin
at the then current rates of withdrawal, and provides for the designation
of such areas. With certain exception: nd irrigation well may 'b ini
stalled in any critical ground-water area without obtaining a~'f&Mt'
therefore from the State Land Commissioner; and no perimitiitiy be
issued for the installation of any- irrigation well within any critical
ground-water area for the irrigation of lands which at the effedti'raSt t
of the act were not irrigated, or which had not been cultivated within
five years prior thereto.
Procedure for the determination of relative rights to the use of waters
of streams or other aterlsupplies, and:for the reconciliation of deter'
minations in different proceedings, is provided in the Water Code.i

"f)eoKnaie ,. Aj1ere2 R;Aria.,41, 5, t7fiie, P 568 (19I1,); Brewster v. Sai4
River Valley Water User' Assn., 27 Ariz. 23 41, 229 Pac. 929 (1924) ; Mricopa
County M. W. C. Dist. v. Southwest Cotton Co., 39 'Ai. 65, 80-85, 4 Pac.
(2d) 369 (1931);Pourai:v. Curtis, 43PA 40, 147, 29 14ci (2d) 722 (1934);'
Campbell v. Wilard, 45 Ariz. 221, 224-225, 42 Pac. (2d) 403 (1935). In the
Maricopa case, supra, at 39 Ariz. 82-83, the sipmienecouht stated that whether
or not the statement in Howard v. terri~~ wa dict ta,iit d been accepted as the
law in Arizona and still was the law.
'The point was raised, but not decided, in the Matte adecO :l pta, at
39 Ariz. 83-84. InPour riv.Curtis, supra,'at 43 Ariz. 147, the court stated:
"It is the law of Arizona that percolating waters belong to the owner of the land
on which they are fouad And he may eoney them to otherpremises
than those on which they are originsalyofeuad, proided no'other rights are
injured thereby. *" [Emphasis supplied.] In this case plaintiffs were
claiming as landowners iant defendants as appropriate, the rights of owners of
other overlying lands being not involved. : '
"Ariz. Code Ann. 1939, Cam. Pocket Supp. 1949, H 75-145 to 75-160; Ariz.
Laws 1948, 6th Special Session, ch. 5, approved April- 1948. In1945 a att
waipassed providing, among other thing, that all personsowning or operating
irrigation or 'drainage wells should report certain data concerning such wells tW
the State Land Commissioner, and that in the future o person should drill ore
cause to be drlled any well for the develop* enht of ground water without fist
filing notice with the.commissioner: Ariz. Code Ani. 1939, Cum. Pocket Supp.
1949, 75-2101 to 75-21f0; Ariz. Lais 1945, 1st Special Session, ch. 12.
"Ariz. Code Ann. 1939, 75-114 to 75-127. The constitutionality of the
procedure was upheld, under attack, in Stuart v. Norviel, 26 Ariz. 493 226 Pac.
908 (1924).

The State-Land Commissioner, on his own initiative, may determine the
rights of the vvious claimants, and is required to do so when petitioned
i ne ;P ort, wamersie= if the circumstances justify it. Ay State
court i, whi) an aio is brought to,detenpine such rights may trans-
fer t 'heactig to the commissioner for determination. The Commis-
sioner is authorized to ~anie rvestigation, take testimony, and ,ake
Aindins of fact and an pndg of determination of the relative rights; and
thereupoAn l, is required to file .the record in the superior court for a
jui q 4d tr ation of such rights. The court proceedings are com-
paa those of a suit in equity, culminating in aju4gment of ad-
judicad6 affirming or modifying the order made by the commissioner.
Administration pof the Water Code and of the distribution ofwaterp
according to rights of use is vested in the .State Land Commissioner,
ea~septing distributiQn reserved to water commissioners appointed by the
court uder decrees existing when the Water Code was enacted.2 Pro-
vision is made for the creation by~the commissioner of water districts
when necessary, for the appointment, tutles, and powers of water super-
i"tendent for, such districts, and for control structures at sources of

f *ifersid water law includes rights of use acquired by prior appro-
priation, and rights inherent in the ownership of larids riparian to
natural streams or lakes and lands Overlying ground-water supplies.
The riparian and overlying rights Apare? paiamt, but all water rights
of whatever character are now limited by constitutional mandate to the
reasonable beneficial use of water.
'T e riparn doctrine is based upon the adoption of the common
lif4'td50,; diiyear in hicli California was admitted to the Union."
inmpbrtant as the riphrfan doctrine eventually become, it had no effect
ipon"'the use of water for mining during the years immediately follow-
ikigthe discdve$ y of gold in 1848; fot the mining lands were at of the
pib~ k 'dotinai,' nld the mine. (in 'mny cases technically trespassers)
sinpl foli oe d the expedient course 6f walking and enforcing their
own rules governing claims o,theuse ,wytr as well as mining claims.
These custom and rulesbased upon priority of possession, diligence
in constructing works and putting water to use, and beneficial useof
the water, varied from one mining camp to another but followed the
same general pattern. As sucl ,,they were recognized by the courts as
SAriz. Code Ann. 1939, 75-103.
SAriz. CodeAnn. 1939, i 75-128 to 75-136.
SLux v. Haggin, 69 Calif. 255, 379-387, 10 Pac. 674 (1886).

valid local law, suited to the environment,2' and became the basis of
the first State legislation authorizing the appropriation of water, ein-
acted in 1872." Appropriations of water under the 1872 statute were
initiated by posting notices, and by recording the notice and com-
mencing construction of works within prescribed periods of time-a
procedure that had been developed in the mining camps. An act
known as the Water Commission Act, passed in 1913 2 and effective
December 19, 1914, established State administrative control over the
appropriation of water other than percolating ground water, and pre-
scribed a procedure for making appropriations which the California
Supreme Court ha held to be exclusive of any other method." This
legislation was reenacted'in 1943 as part of the Water Code."
It was not until 1886, in the case of Lux v. Haggin,t that the riparian
doctrine became firmly established i California jurisprudence. The
court held that.the right of a riparian proprietor to the natural flow of a
watercourse is inseparably annexed to dth soil of the tract contiguous
thereto, and passes with the land, not as an easement or appurtenance,
but as a parcel; that use does not create the right, and that disuse can-
not destroy it except as a result of prescription; and that the riparian
owner in California is entitled to a reasonable use of the water for
irrigation in relation to the reasonable needs of all other riparian pro-
prietors on the same stream. Subsequent litigation over water rights,
including conflicts between riparian and appropriative claims on the
same stream system, has been extensive. The appropriator, as time
went on, was held to an increasing measure of reasonable beneficial use
as a necessary element of his water right, not only as against other
appropriators, but alo when a claim of prescriptive title was being
asserted against a riparian owner. B~t until within the past quarter-
century the converse was not true. That is, as stated by the supreme
court in 19p9,3s the limitation of a riparian owner to reasonable use of
water applied only as between different riparian proprietors; as against
an appropriator, "He is not limited by any measure of reasonableness."
The public became deeply interested in the ever-recurrent conflict as
"Stiles v. Laird, 5 Calif. 120, 122, 123, 63 Am. Dec. 110 (1855); Irwin v.
Phillips, 5 Calif. 140, 145-147, 63 Am. Dec. 113 (1855); Tartar v. Spring
Oreek:Water & Min. Co., 5 Calif. 395, 399 (1855).
C "alif. Civ. Code, 1410 et seq.
SCalif. Stats. 1913, ch. 586.
Crane v. Stevinson, 5 Calif. (2d) 387, 398, 54 Pac. (2d) 1100 (1936).
SCalif. Water Code, 100 to 4407.
Lux v. Haggin, 69 Calif. 255, 390-409,10 Pac. 674 (1886).
California Pastoral & Agricultural to. v. Madera Canal & Irr. Co., 167
Calif. 78, 83-87, 138 Pac. 718 (1914).
"Miller & Lux v. Madera Canal & Irr. Co., 155 Calif. 59, 64, 99 Pac. 502
(1907, 1909).

the result of a decision in 1926 which accorded to a riparian owner
the right to the fill flow of a river in order to support a flow over the
riparian lands of a small fraction of the stream, the outcome of which
was the adoption in 1928 of a constitutional amendment restricting
riparian and other rights to the flow of watercourses to reasonable
beneficial use under reasonable methods of diversion and use, and ac-
kiowledging riparian rights to that extent.8" The supreme court has
sustained the validity of this amendment and has declared it to be
effective in all controversies relating to the use of water." The riparian
owner has a prior and paramount right to the reasonable beneficial use
thus safeguarded him by the constitution; but excess waters above the
quantities to which riparian and other lawful rights attach are public
water of theState, to be used, regulated, and controlled by the State
or-:mnder its direction.
Rights to the use of ground waters follow the legal distinction made
in many jurisdictions between definite underground streams and perco-
lating waters. A few decisions relating to defined underground streams
have held that rights of use are subject to the same rules of law as those
applying to surface streams; and such ground waters-and only such-
are subjected to appropriation by the provisions of the Water Code.a"
Most of the rather numerous cases dealing with ground waters in
California have involved so-called percolating waters, including waters

SHerminghaus v. Southern California Edison Co., 200 Calif. 81, 107-108, 252
Pac. 607 (1926).
"Calif. Const. art XIV, 3. A synopsis of the development of the two
conflicting theories in California water law and of events leading up to the adop-
tion of the constitutional amendment is given in the recent decision of the
Supreme Court in United States v. GerlacA Live Stock Co., 70 S. Ct. 955, 964-
969 (1950). The United States Court of Claims, in Gerlack Livestock Co. v.
United States, 76 Fed. Supp. 87 (1948), a allowed compensation to the owners
of riparian lands that benefited from only the peak flood flows of San Joaquin
River over their lands, such flows being eliminated by the operation of Friant
Dam of the Central Valley Project. The court believed that these riparian
landowners had not been deprived of all their rights by the 1928 amendment,
and that they were entitled to continue ,t receive water that they could use
beneficially, or else to compensation for deprivation of the right. The Supreme
Court agreed that the Court of Claims had correctly applied the California law;
and concluded that even if it were assumed that since the constitutional amend-
pent claimants' right was no longer enfooeable by injunction, it nevertheless
would remain compensable (70 S. Ct. 9694970). -
"Peabody v. Vallejo, 2 Calif.. (2d) 351, 365-368, 40 Pac. (2d) 486 (1935).
Meridian V. San Francisco, 13 Calif. (24) 424,445, 90 Pac. 2d) 537 (1939).
"Los Angeles v. Pomeroy, 124 Calif. 597, 632, 57 Pac. 585 (1899); Vineland
Irr. Dist. v. Azusa Irrigating Co., 126 Calif. 486, 495, 58 Pac. 1057 (1899). See
dictum in Hanson v. McCue, 42 Calif. 303, 308, 10 Am. Rep. 299 (1871); and
the refusal of the court to commit itself in Hale v. McLea, 53 Calif. 578, 584
Calif. Water Code, 1200.

of artesian areas not shown to be parts of definite underground streams.
After the rendition of several decisions following orit least favoring the
English rule of absolute ownership of percolating waters, the supreme
court in 1903, in Katz v. Walkinshaw," discarded that principle and
applied what has come to be known as the California doctrine of cor-
relative rights. The controversy in question involved the relative rights
of owners of land overlying a common artesian belt, the water of which
was found to be broadly diffused, not part of a definite underground
watercourse, and hence subject to the laws applicable to percolating
waters. The new rule.accorded to the owners of lands overlying the
common supply equal rights for use on or in connection with their over-
lying lands, each to have a fair and just proportion in cases in which
the supply should be not sufficient for alL The landowner's right ex-
tends only to the quantity of water necessary for use onhis land; Andiany
surplus that exists may be appropriated for distant use.: Subequient
decisions have followed. the rules suggested in Kat v. W.alkinshaw,
which were summarized in the syllabus of a case decided several years
later.41 It should be noted at this point, as indicated hereinafter, that
there is no statutory procedure applicable to the appropriation of sur-
plus percolating water. Sch appropriations are effected as the result
of diversion and use of.themwater.
As a result of appellate court decisions during the past half-century,
and of noninterference by the Legislature; the correlative doctrine ap-
pears to be firmly established as the law of percolating watersin Cali-
fornia. The supreme court as recently as 1949, in Pasadena v. 4Aham-
bra," made the following comments: "Generally speaking, an overlying
right, analogous to that of a riparian owner in a surface stream, is the
right of the owner of the land to take water fromthe ground underneath
for use on his land within the basin or watershed; the right is based on
ownership of the land and is appurtenant thereto. Although
the law at one time was otherwise, it is now clear that an overlying owner
or any other person having a legaliright to surface or ground water may
*Katz v. Walkinshaw, 141 Calif. 116,128-187, 70 Pac. 663 (1902), 74 Pac.
766 (1903).
SBarr v. Maclay Rancho Water Co., 154 Calif. 428,98 Pac. 260 (1908), For
various points involved in applyig the docttine;ee Cohen v. La Canada Land &
Water Co., 142 Calif. 437, 439-440, 76 pee, 47 (1904) ;Newport v. Terescal
Water Co., 149 Calif. 531, 537-539, 87 Pie. 372 (1986) ;Bcartor v. Riverside
Water C6., 155 CaliU 509; 516-519; 101 :Pa..3790 (1909).; Hudson r. Dailey,
156 Calif. 617, 625-628, 105, Pac. 748 (C909);,Corear.Foothill Lemons Co. v.
Lillibridge, 8 Calif. (2d) 522, 530-532, 66 Pac. (2d) 443 (1937); Hillside
Water Co. v. Los Angeles, 10 Calif. (2d) 677, 685-688, 76 Pac. (2d) 681
a Pasadena v. Alhambra, 33 Calif. (2d) 908, 925-926, 928-933, 207 Pac. (2d)
17 (1949); cert. den., California-Michigan Land & Water Co. v. Pasadena,
70 S. Ct. 671 (1950).

take only such amount as he reasonably needs for beneficial purposes.
*! Any water not needed for the reasonable beneficial uses of
those having prior rights is excess or surplus water. In California surplus
water may rightfully be appropriated on privately owned land for non-
overlying uses, such as devotion to a public use or exportation beyond
the basin or watershed. Poper overlying use, however, is
paramount, and the right of an appropriator, being limited to the
amount of the surplus, must yield to that of the overlying owner in the
event of a shortage, unless the appropriator has gained prescriptive
rigts through the taking of nonsurplus waters. As between overlying
owners, the rights; like those of riparians, are correlative and are re-
ferred to as belonging to all in common; each may use only his reason-
able share when water is insufficient to meet the needs of all."
SThe actual decision in Pasadena v. Alhambra, supra,'" is of funda-
mental importance in California ground-water law because of the
principles therein applied to the adjustment of rights to the use of
waters of a ground-water area (Raymond Basin) that had been over-
drawn for many years. Claimants of most of the water rights, including
"overlying" landowners and appropriators for distant use or for public
service, were parties to the adjudication. The supreme court stated
that there was an invasion to some extent of the rights of both overlying
landowners and appropriators commencing in 1913-14, when the. over-
draft first occurred. From then until the suit was brought in 1937, the
pumpage from the basin exceeded the safe yield in all excepting two
years; but notwithstanding the overdraft, the parties continued their
pumping, the effect of which was to continue the overdraft and lowering
of the water table. Hence no user was immediately prevented from
taking the water he needed; the injury 'consisted of the continual lower-
ing of the level and gradual reducing of the total amount of stored
water, the accumulated effect of which, after a period of years, would be
to render the supply insufficient to meet the needs of the rightful
owners." The invasion thus was a partial one; but the pumping by each
party necessarily interfered with the future possibility of pumping by
each of the other parties. The court held that prescriptive rights were
established by appropriations made after the commencement of the
overdraft; that such rights were acquired against both overlying
owners and prior appropriators; that the overlying owners and prior
appropriators also obtained or preserved rights by reason of the water
which they pumped; and that the production of water should be limited
by a proportionate reduction in the amount each party had taken
throughout the statutory period. The effect of the decision is that where
overlying landowners and appropriators had been pumping from a
ground-water basin for many years after the safe yield had been over-
See supra, n. 42, p. 718.

drawn, no overlying owner or appropriator could claim a paramount
right to the full quantity of water he had been pumping, nor had he
fully lost his right to pump by reason of the continued pumping by
others. All parties were restricted to a proportionate reduction in the
quantities of water they had been pumping, the total aniiual p"umpage
from the basin being limited to the safe yield.
Administration of the Water Code provisions relating to the appro-
priation of water, determination of water rights, and distribution of
water is vested in the State Department of Public Works and exercised
through the State Engineer.A It is declared to be the established policy
of the State that the use of water for domestic purposes is the highest
use of water and that the next highest use is for irrigation; 4 and
an application by a municipality to appropriate water for its use or the
use of its inhabitants for domestic purposes is to be considered first in
right, irrespective of whether it is first in time.n The right of a munici-
pality to acquire and hold water rights not only for existing but for
future use is specifically provided for, temporary appropriations by
others being authorized with respect to the surplus over the existing
needs of the municipality pending the time it is ready to use the surplus "
Waters made subject to appropriation by the Water Code are only
surface water, and "subterranean streams flowing through known and
definite channels."" This necessarily excludes percolating water, the
surplus of which over the needs of overlying landowners is appropriable
pursuant to decisions of the supreme court, noted above, but not under
the statutory procedure. The appropriability of return flow is indicated
by the declaration that unappropriated water subject to appropriation
includes "Water which having been appropriated or used flows back into
a stream, lake or other body of water." An appropriation is initiated
by applying to the Department for a permit, the holder being issued a
license upon completion of the project.6" Thisis the exclusive method
of acquiring an appropriative right to the use of any water to which the

Calif. Water Code, 1050.5.
SCalif. Water Code, 106. The supreme court, in East Bay Municipal
Utility Dist. v. State Department of Public Works, 1 Calif. (2d) 476, 477-481,
35 Pac. (2d) 1027 (1934), upheld the action of the State agency in imposing a
condition, in issuing a permit to appropriate water for power purposes, that the
right to store and use water under the permit should not interfere with future
appropriations of such water for agricultural or municipal purposes.
"Calif. Water Code, 1460.
a Calif. Water Code, 106.5, 1203, and 1460 to 1464.
Calif. Water Code, 1200.
Calif. Water Code, 1202 (d).
"Calif. Water Code, 1250 to 1677.

statute applies." Failure to make usq of the water for a period of three
years resultsin forfeiture of the right."
Procedure is provided in the Water Code for the determination of
rights to the use of water (excluding percolating water) by the Depart-
ment, upon petition by one or more claimants on a stream system; the
order of determination being filed in the superior court, the proceedings
therein following as nearly as practicable the rules governing civil
actions, and culminating in a decree determining the rights of all
parties." It is also provided that in any suit brought to determine
water rights, the court may order a reference to the Department, as
referee, of any or all issues involved, or may refer the suit to the Depart-
ment for investigation and report upon any or all of the physical facts
involved." This reference procedure is discretionary with the trial
court; and it is subject to no limitation upon classes of water to which
it is applicable."5
The Water Code makes provision for the creation of watermaster
service areas by the Department when and where needed, for the
appointment and duties of watermasters, and for the distribution of
water in the service areas in accordance with rights of use."


The constitution of Colorado declaes that the unappropriated water
of every natural stream is the property of the public, subject to appro-
priation, and that the right to divert such waters to beneficial uses shall
never be denied." It is also declared that priority of appropriation
"Calif. Water Code, 1225; Crane v. Stevinson, 5 Calif. (2d) 387, 398,
54Pac. (2d) 1100 (196).
SCalif. Water Code, 1241. Section 1411 of the Civil Code had declared
that an appropriative right should cease when the appropriator ceased to use
the water, but prescribed no time period. The supreme court, in Smith v.
Hawkins, 110 Calif. 122, 127, 42 Pac. 453 (1895), by analogy to the periods
fixed by law for the acquisition and loss pf prescriptive rights, held that a con-
tinuous nonuser for five years would forfeit the appropriative right.
SCalif. Water Code, 2500 to 2900.
Calif. Water Code, 2000 to 2050.
"The reference procedure was applied to the waters of Raymond Basin in
Pasadena v. Alhambra, supra, footnote. 2. The trial court had referred the
matter to the Department for a dtei tion of the facts, and the report of the
Department was received in evidence, -rsuant to section 24 of the Water
Commission Act and 2000 to 2050 o the Water Code which replaced it.
The reference in this case was approved by he supreme court.
"Calif. Water Code, 4000 to 4407.
Colo. Const., art. XVI, 5 and 6.

shall give the better right as between those using water for the same
purpose; but that in event of insufficiency of the supply,/domestic pur-
poses shall have first preference, and agricultural purposes shall have
preference over manufacturing.1 However, the Colorado Supreme
Court has held that this section does not entitle one desiring to use
water for domestic purposes to take the water from a prior appropriator
for some other purpose, without just compensation." The Colorado
Supreme Court has recognized the right of the City of Denver to
appropriate water not only for immediate use but for the needs result-
ing from a normal increase in population within a reasonable time in the
future, and to lease the use of water pending its need by the city; ,'anid
the city is protected by statute against the vesting of rights under such
leasing that would defeat the city's right to make eventual use of the
The method of acquiring appropriative rights to the use of waters
of natural streams in Colorado is a logical result of the constitutional
prohibition against denying the right to make 'ch appropriations.
The intending appropriator does not apply to a State agency for a
permit to appropriate water, subject to fefusal if statutory conditions
require or authorize denial of the application, as is the case in many of
the Western States. In Colorado one who proposes to appropriate
unappropriated water of a stream commences the construction or en-
largement of the necessary diversion or sTurage works, and within 60
days thereafter he files a claim therefor'withi the State Engineer. If
the facts are adequately presented, the StateEngineer accepts the claim
for filing, after which reproductions are made and filed in the appro-
priate county records." The foregoing is the statutory procedure for
initiating an appropriation; but the requirement, for filing maps and
statements have been so construed by the supreme court as to restrict
their purpose and effect to matters of evidence." That is to say, it

"Colo. Const., art. XVI, 6.
Montrose Canal Co. v. Loutsenhizer itch Co., 23 Colo. 233, 236-237, 48
Pac. 532 (1896); Sterling v. Pawnee Ditch KEtension Co., 42 Colo. 421,426-427,
94 Pac. 339 (1908). And see Strickler v. Colorado Springs, 16 Colo. 61, 72-75,
26 Pac. 313 (1891).
Denver v. Sheriff, 105 Colo. 193, 203-208, 96 Pac. (2d) 836 (1939).
'Colo. Stats. Ann. 1935, ,ch. 193,.f 398 (LaWs 1931, ch. 172). This
statute provides that if a city with population of 200,b00'or more leases water
not needed for immediate use, no rights shall become vested to a continued
leasing or to a continuance of conditions concerning return water from irrigation
so as to defeat the right of the city to terminate the leases of to change the
place of use.
SColo. Stats. Ann. 1935, ch. 90, 27 to 33.
"De Haas v. Benesch, 116 Colo. 344, 351-352, 181 Pac. (2d) 453 (1947);
Schulter v. Burlington Ditch, Res. & Land Co., 117 Colo. 284, 289, 188 Pac.
(2d) 253 (1947); Archuleta v. Boulder & Weld County Ditch Co., 118 Colo.
43, 52, 53, 192 Pac. (2d) 891 (1948).

is held that waqr rightsRin Corade npt based upon the filing; of
maps or statements and that the la thereof does not invaUdate the
appropriations; the question as t9 whether or not the documents were
filed being a matter of evidence only a4d not he substance of the appro-
priaion. "A compliance with the statutoy requirements in question is
not strictly a. part of the act of appropriation; the appropriation is com-
pleted when the ditch or conduit is, instructedd and the water is di-
verte4 therethrough and applied to a beneficial use. The filing of
maps and statements under our irrigapioastatutes is a means of fixing
and holdingthe rights which a party already has acquired by appro-
priation and are only prima face evidence of the appropriation." "
The riparian doctrine never has been a part of the waterlaw of Colo-
rado. The repudiation of that doctrine was foreshadowed in very early
cases,5 and became specific when the supreme court declared, in 1882,
that the common-law doctrine of riparian rights was inapplicable to
Colorado and that the doctrine of appropriation had existed from he
time of the earliestappropriations of water within the boundaries of the
State." True, there were some late observations by the same court
copperaiag common-law rights of nariqan owners to take water for
domestic purposes, but the statement to that effect in both of the
cited cases were dicta; in neither case was there an actual adjudication
of a water right based upon ownership of ripyriap land. Also, shortly
thereafter, a Federal court decided that insolar as diversions of water
from streams for manufacturing, mining, or mechanical purposes were
concerned, the riparian doctrine was the law in Colorado; ".but that
decision was expressly disapproved n a 'later decision by a higher
FederaLcourt as being not in accord v ith the decisions of the Colorado
Supreme Court and as being not sustained by the better reasoning.
4Archualta v. Boulder & Weld County Ditch Co., 118 Colo. 43, 53, 192 Pac.
(2d) 891 (1948).
Y-usr v. Nihols, 1 Col. 551, 553-55p, 570 (1872) ; Schillig v. Rominger,
4 Colo. 100, 103, 104 (1g87).
Cosb v. Left Hand iJak C s, 6 Colo 443, 446-447 (1882).
SMostrob Canl Co. v. iteutseuhier tikth Co., 23 Colo. 233, 237,48 Pac.
532.(896); Broaidmoor Dairy- 94Uwit Sok Co. v. Brookside Water fti-
prnowMase io., 24 Cold. 541, 546, 550, 52, Pac. 792 (1898).
S, 8a'vwu eadinm, 86 Fed. 41, 43-44 ( C. D. Coleo, 1898).
"S$y't v,. ilorado Gold Dredging .o., 181 Fed. 62, 68 (C. C. A. 8th,
1910). T'he cort stated, at 181 Fed..6 : "The common-law doctrine in re-
spect of the rights of riparian proprietorws n the waters of natural streams never
has obtained in Colorado. From the earliest times in that jurisdiction the local
customs, laws, and decisions of courts h united in rejecting that doctrine and
in adopting a different one which regard the waters of all natural streams as
subject to appropriation and diversion for beneficial uses and treats priority of
appropriation and continued beneficial useas giving the prior and superior right."
The United States Supreme Court, in Wyc*ing v. Colorado, 259 U. S. 419,459
(1922), stated with respect to Colorado and Wyoming: "The common-law rule
respecting riparian rights in flowing water, never obtained in either State."

Notwithstanding these few inconsistencies, a long and unbroken line of
decisions of the State courts of Colorad6 has followed the appropriation
doctrine exclusively in settling controversies over rights to the use of
stream waters, and with the one exception above noted the Federal
courts have followed the same course; the question of repudiation
of the riparian doctrine so far as Colorado is concerned having beef
settled definitely a long time ago."
The law with respect to the use of waters of definite underground
streams, of the subflow of surface streams, and of ground waters tribu-
tary to watercourses, apparently is well settled in Colorado-rights to
the use of all such ground waters are governed by the doctrine of prior
appropriation. This excludes percolating waters occurring naturally in
the ground but not tributary to watercourses, concerning which it may
be reasonably assumed-but only assumed-that the appropriation doc-
trine applies. The rules are as follows:
Waters flowing in well-defined and known underground channels the
course of which can be distinctly traced are governed by the same rules
as the waters of streams flowing upon the surface." The undeiiow'is
as much a part of a watercourse as is the surface flow, and the rights
of prior appropriators on the stream are protected against such inter-
ference with the underflow as would impair the proper exe~tise of their
rights." All sources of supply of a stream, whether they reach it by
percolation through the sbfi, by subterranean channels, or by iirface
channels, are a part of the stream system and are open to appropriation,
subject to prior appropriative rights that have attached to the stream."
A statute declares that the utilization of waste, seepage, and spring
waters shall be governed by the same laws of priority of right as the
utilization of water of running streams; "provided, that the person upon
whose lands the seepage or spring waters first arise, shall have the prior

o"In Steraberger v. Seaton Mi. Co., 45 Colo. 401, 402-404, 102 Pac 168
(1909), plaintiffs asserted common-law riparian rights with respect ;to lands
acquired prior to the adoption of the State constitution and before defendant's
appropriation was made. The supreme curt stated: "At this late day it would
seem to us, as it evidently did to the trial court, idle to make such coittention
in this state. The latter has long ago beeiett t rest. : ,The doctrine
in this state that the common-law rule of continuous flow of natural strains is
abolished, is so firmly established by our constitution, the statutes of the terri-
tory and the'state, and by many decisions of this court, that we decline to reopen
or reconsider it, however interesting discussion thereof might otherwise be, and
notwithstanding its importance." '
SMedano Ditch Co. v. Adams, 29 Col.o 317, 26, 6'Pa. 431 (1902).
"Platte Valley Irr. Co. v. Buckers Irr., Mill. & Improvement Co., 25 Colo.
77, 82, 53 Pac. 334 (1898); Buckers Irr., Mill. & Improvement Co. v. Farmers'
Independent Ditch Co., 31 Colo. 62, 71, 72 Pac. 49 (1903).
"McClellan v. Hurdle, 3 Colo. App. 430, 434, 33 Pac. 280 (1893); In re
German Ditch & Res. Co., 56 Colo. 252, 268, 271, 139 Pac. 2 (1913); Faden v.
Hubbell, 93 Col. 358, 68-369, 28 Pac. (2d) 247 (1933).

rightto such waters if capable of being used upon his lands." 7 The
supreme court has held that where t waters of a spring form no part
of a natural stream, and cannot rea a stream except when carried
along by a flood, the proviso above quoted is applicable; but that not-
withstanding the proviso, where such water would reach a natural stream
if not intercepted, it does not belong othe landowner but is a part of
the stream and subject to prior rights hereto." A considerable part of
th percolating water that feeds the s reams flowing through irrigated
regions consists of return flow from nation. All such water that
escapes from the control of the origin appropriator, and that would,
if left to itself, reach a natural stream by underground percolation, is a
part of the stream to the same extent as tributary percolating water
originating from natural sources."
No rule appears to have been announced by the courts with respect
to rights of use of percolating water occurring naturally in the ground
but not tributary to any watercourse, such as water cut off from a
sreiam by an impervious formation. If such waters are added to a
stream as developed, or foreign waters they may be taken by the person
sd maJkng them available, or appro riated independently, according
to the circumstances. O otherwise, however, in view of the consistent
waterlw philosophy of Colorado, it is reasonable to assume that the

"eoo Stats. Ann. 1935; ch. 90, 20.
"Haver v. Matonock, 79 Cole. 194, 196-197, 244 Pac. 914 (1926); Lomas v.
Webster, 109 Colo. 107, 110, 122 Pac. (2d) 248 (1942); Webster v. Lomas,
112 Colo. 74, 75, 145 Pac. (2d) 978 (1944)1
"Nevius v. Smith, 86 Colo. 178, 180-183, 279 Pac. 44 (1928, 1929) ;Paden v.
ubb6tir; Colo. 358, 368-369, 28 Pac. (Sd) 247 (1933); De Haas v. Benesch,
116 Colo 344, 351, 181 Pac (2d) 453 (1947).
"In Fort Morgan Res. & Irr. Co. v. 'cCune, 71 Colo. 256, 261, 206 Pac.
393 (1922), the supreme court stated: ginning with the Ramsay case the
principle upon which the decisions are b appears to be that water escaping
from a reservoir, or ditch, underground, d becoming percolating water which
will naturally reach a public stream, must be regarded as a part of the stream.
S* These cases show that it has n held by this court that the question
of diligence in attempting a recapture, the time during which the seepage
has run, or the question whether or not te water was appropriated when not
needed for direct irrigation, is not materii. When it has become, potentially,
under the rule above stated, a part of the rver, it belongs to the appropriators in
the order of their priorities whenever need ." The decision usually referred to
as the starting point of the Colorado rule s Comstock v. Ramsay, 55 Colo. 244,
133 Pac. 1107 (1913).' For the development of the Colorado rule, see National
Resources Planning Board, "State Water Iaw in the Development of the West",
pp. 30-32 (1943).
"Ripley v. Park Center Land & Wat Co., 40 Colo. 129, 133, 90 Pac. 75
(1907) ;3S:a Luis Valley Irr. Dist.v. Prari Ditch Co. and Rio Grande Drainage
Dist., 84 Colo. 99, 106, 268 Pac. 533 (1928). A person who claims that by his
own efforts he has increased the flow of a streamhas the burden of proving his
contention: Leadville Mine Development Co. v. Anderson, 91 Colo. 536, 537-
538, 17 Pac. (2d) 303 (1932).

appropriation doctrine would be applied as against a claim by a land-
owner that, irrespective of whether or not-he has made actual use of
the water percolating through his land, he has a paramount right
The statutes of Colorado do not provide for the forfeiture of appro-
priative rights by reason of failure to, use the water for specified periods
of time, as is the cas6 in many Westein States., Many decisions of the
supreme court, however, have been concerned with the loss of water
rights by abandonment. In a recent case involving abandonment there
was no dispute as to the nonuse of the ditch and the water for ah6mst40
years, and the trial court found that the ditch and its priority had been
abandoned." In affirming the judgment of the trial court, the supreme'
court reviewed various decisions relating to abandonment of water
rights and thus summarized the controlling principles:
We conclude from these statements that while the burden of
proof of intent to abandon is on him who asserts it, yet such
intent may be proved by evidence of acts and failure to act as
well as by mere words; that.nonuse constitutes such faihre to
act; that proof of nonuse for an unreasonable period establishes
a presumption of abandonment and is prima facie proof thereof;
that nonuse for the period here proved is an unreasonableperiod;
that to rebut the presumption of abandonment arising from such
long period: of notise, there must be established not merely
expressions of desire or hope or intent, but some fact or condi-
tion excusing such long nonuse. In the instant case, the exist-
,ence of such a fact or condition was an issue to be determined
by the trial court and the evidence amply supports its
Jurisdiction of all questions concerning the determination of water
rights is vested exclusively in the courts."0 The State Engineer is called
upon by the courts in adjudication proceedings for filings of appropria-
tions in his office,5 and decrees of adjudication become effective when
certified copies thereof have been filed in the offices of the State Engi-
neer and of the irrigation division engineer for the guidance of the
State water officials in regulating the distribution of water accordingly; 2

"Mason v. Hills Land 4 Cattle Co., 119 Colo. 404, 407, 408-409, 204 Pac.
(2d) 153 (1949). The principles so stated would be generally applicable in
other Western jurisdictions as well, with respect to abandonment as distinguished
from statutory forfeiture of appropriative rights.
-.Colo. Stats. Ann., 1947, Cum. Supp., ic. 90, 189 (2). The statutory
provisions governing the adjudication of priority rights t the use of water wei
repealed and replaced by new provisions in 1943: Cols. Laws 1943 cie 190,
codfiedin 1947 Cum. Supp., ch. 90, 189 (1) to 189 (25).
SColo. Stats. Ann. 1935, ch. 90, 193.
Colo. Laws 1943, ch. 190, 15; 1947 Cum. Supp., ch. 90, 189 (15).

but .the adjudication proceedings from start to finish are judiciaL
However, a large, active organization headed by the State Engineer
administer the decrees of adjudication of water rights and distributes
the water according to them." The State is divided by statute into
irrigation divisions comprising princlal drainage areas, administered
by irrigation division engineers ho are under the general supervision
of the State Engineer." Each division in turn comprises a number of
water districts, likewise created by statute, which are administered by
water commissioners under the supervision of the irrigation divisii

The constitution of Idaho declares that the right to divert and appre-
priate the unappropriated waters of any natural stream to beneficial
uses shall never be denied, except that the State may regulate and limit
the use thereof for power purposes." Other provisions of the same
section of the constitution are: Priority of appropriation gives the better
right; but when the waters of a stream are not sufficient for all-who
desire to use them, domestic purposes subjectt to such limitations as may
be prescribed by law) have the first preference, and agricultural pur-
poses have preference over manufacturing. In any organized mining
district, mining purposes or milling purposes connected with mining
have preference over manufacturing or agricultural purposes. The
usage by such subsequent appopriato, however, is subject to the laws
regulating the taking of private oprty by condemnation for public
and private use. The Idaho Supremeourt has recognized the preer-
ence thus accorded users of water for domestic purposes, expressly sub
ject, however, to the payment of compensation by those taking for
superior purposes water already appropriated by others." The court
has also held that the constitutional preference accorded to mining and
milling purposes in an organized 4miing district does not authorize
parties engaged in mining or any other occupation to fill up the natural
channel of a public stream to the injury of any other user of the water of
sudh Bsram.e*m
'The statute relating to the appropriation of water declares that all
waters when flowing in their natural channels, including the waters

Colo. Stats. Ann. 1935, and 1947 Cum, Supp., ch. 90, 31 201 to 345; Law
1943, ch. 190, 15, codified 1947 Cum. Supp., ch. 90, 189 (15).
T Coo. Stat. Ana 1935 and.1947 Cum. Supp., I 224 to 248.
olo. Stats. Ann. 1935, and 1947 Cum. Supp., 249 to 345.
Idaho Const., art XV, 3 3.
Moutpelier Mill. Co. v. Montplier, 19 Idaho 212, 219, 220, 113 Pac. 741
(1911); Basipger v. Taylor, 30 Idaho 289, 294, 295, 164 Pac. 522 (1917).
v Hill v. Standard Mis. Co., 12 Idaho 223, 233, 85 Pac. 907 (1906); Ravndal
v. North Fork Placers, 60 Idaho 305, 311, 91 Pac. (2d) 368 (1939).

of natural springs and lakes, are the property of the State, and that the
right to the use of the waters of "rivers, streams, lakes, springs, and of
subterranean waters" may be acquired by appropriation." The statute
also provides that all rights to the use of water shall be "lost and
abandoned" by failure for a period of five years to make the beneficial
use for which the water was appropriated; such loss of right being stated
by the supreme court to be in fact a statutory forfeiture as distinguished
from a true abandonment."
As a result of the constitutional prohibition against the denial of
appropriations of water, there are two methods of appropriating Water
in Idaho, of equal validity. One method is the procedure provided by
statute, under which the right originally was initiated by posting and
recording a.notice of appropriation, but now is initiated by filing with
the State Department of Reclamation an application for a permit to
make the appropriation. The Department issues a certificate to the
water user upon completion of construction of the works; and upon
application of the water to beneficial use and a showing that the law
has beenjully complied with, the Department issues to the water user a
license confirming such use.-1 The extant water appropriation statute
declares that all rights to divert and use the waters of the State for
beneficial purposes shall be acquired and confirmed under the provisions
of the statute."2 Notwithstanding this declaration, it is well settled in
Idaho that the statutory procedure in effect at the time of making a
particular appropriation (initiation by posting and recording notice, or
by applying to the State for a permit, as the case may be) has not been
and is not now the exclusive method of appropriating water, and that
equally valid rights may be acquired by diverting water and applying
it to beneficial use without pursuing the statutory method.93 The
method of appropriating water by mere diversion and use is often
referred to as the "constitutional" method, as distinguished from the

Idaho Code, 42-101 and 42-103.
SIdaho Code, 42-222. In Carrington v. Crandall, 65 Idaho 525, 532,
147 Pac. (2d) 1009 (1944), the court pointed out that while the statutedesig-
nates the loss as "abandonment," it is in fact a statutory forfeiture; that thee is
another kind of abandonment that is actual, not dependent upon length of time,
the essential element of which is intent to relinquish the right.
SIdaho Code, 42-202 to 42-311. The license is only prima face evi-
dence of the water right: Basinger v. Taylor, 36 Idaho 591, 597-598, 211 Pac.
1085 (1922).
"Idaho Code, sec. 42-201.
"Sand Point Water & Light Co. v. Panhandle Development Co., 11 Idaho
405, 413, 83 Pac. 347 (1905); Nielson v. Parker, 19 Idaho 727, 730-731, 733,
115 Pac. 488 (1911); Youngs v. Regan, 20 Idaho 275, 279, 118 Pac. 499 (1911);
Furey v. Taylor, 22 Idaho 605, 611, 612, 127 Pac. 676 (1912); Washington
State Sugar Co. v. Goodrich, 27 Idaho 26, 38, 147 Pac. 1073 (1915); Bachman
v. Reynolds rr. Dist., 56 Idaho 507,514,55 Pac. (2d) 1314 (1936).

"statutory" method." The advantage of following the statutory method
lies in the application of the doctrine of relation, or "relation back" as
it sometimes is termed. That is, the priority of a right acquired by the
so-called "constitutional" method dates from the completion of the
appropriation, which takes place upon the application of the water to
beneficial use; whereas the priority of a right perfected by strict com-
pliance with the statute relates back; to, and therefore dates from, the
time of filing the application with the State agency, the statutory pro-
cedure being the exclusive method by which the right can relate back to
the initiation of the appropriation."
.The riparian doctrine is not recognized in Idaho with respect to the
use of water of streams. The supreme court, in its first reported decision
in a controversy over rights to the use of water, stated the law of the
Territory to be that the first appropriation of water for a useful or
beneficial purpose gave the better right thereto." And in its second
reported decision in this field of law, the supreme court affirmed, the
judgment of the trial court in favor of a prior appropriator of water
of a stream as against a party who, after the making of such appropria-
tion, entered and patented land contiguous to the stream and claimed
the right to use the stream water as a reparian proprietor." In ,1909
the court held that the legislature had full authority to provide the
method of appropriating public waters by all persons, whether riparian
owners or not." The court held, in the same year, that a riparian
proprietor in Idaho could not successfully assert a prior or superior right
to the right of an appropriator, to which extent the common-aw doc-
trine or riparian rights had been abrogated by the constitution and
statutes; but that the riparian owner's right to use the water for do-
mestic- and stock-watering purposes was "superior to any Tight of a
stranger, intermeddler or interloper,' that is, under the facts of the case,
one who had interfered with the flow of the water at a time when he
did not occupy the status of a legal appiroriator." Notwithstanding
this statement based upon the circumstances of the case, no question

"Pioneer irr. Dist. v. American Ditch Assn., 50 Idaho 732, 737, 1 Pac. (2d)
196 (1931).
Crane Falls Power & Irr. Co. v. Snake River Irr. Co., 24 Idaho 63, 81-82,
133 Pac. 655 (1913); Reno v. Richards, 32 Idaho 1, 10-11, 178 Pac. 81 (1918);
Silkey v. Tiegs, 51 Idaho 344,353, 5 Pac, (2d) 1049 (1931). Only when there
is a full compliance with the statutes can the doctrine of relation be invoked:
Rabido v. Purey, 33 Idaho 56, 63, 190 Pac. 73 (1920); Bachman v. Reynolds
Irr. Dist.,56 Idaho 507,'520, 55 Pac. (2d) 1314 (1936).
Malad Valley Irr. Co. v. Campbell, 2 Idaho 411, 414, 18 Pac. 52 (1888).
"Drake v. Earhart, 2 Idaho 750. 757, 23 Pac. 541 (1890).
Idaho Power & Transportation Co. v. Stephenson, 16 Idaho 418, 429, 101
Pac. 821 (1909).
Hutchinson v. Watson Slough Ditch Co., 16 Idaho 484, 491-494, 101 Pac.
1059 (1909).

remains or has remained for many years as to the repudiation of the
riparian doctrine in Idaho.'"
The appropriation statute, as noted above, includes "subterranean
waters" in the classes of waters named as subject to appropriation. The
supreme court has rendered several decisions with respect to rights to
the use of ground waters which, while not uniform in the development
of principles, with one exception have tended toward the doctrine of
appropriation 101 and finally have embraced that doctrine completely.10
Percolating waters, like waters of surface streams, may be appropriated
either by the statutory permit method or by actual diversion and appli-
cation to a beneficial use; and "a valid appropriation first made under
either method will have priority over a subsequent valid appropriation
however made." l0o
Water rights in Idaho may be adjudicated only in proceedings ini-
tiated by claimants of rights to the use of water. The water-rights
statute originally provided for the bringing of suits by State water com-
missioners for the adjudication of water rights, but the sections in ques-
tion were declared unconstitutional by the State supreme court.10-
However, the supreme court has upheld the validity of a section author-
izing the judge, if a suit is brought for the purpose of adjudicating
water rights, to request the State Department of Reclamation to make
and furnish a hydrographic survey of the stream in litigation.1" The
statutes provide for the distribution of water under the immediate
direction and control of the Department of Reclamation; for the crea-

Jones v. Mclntire, 60 Idaho 338, 352, 91 Pac. (2d) 373 (1939); Schodde v.
Twin Falls Land & Wqter Co., 224 U. S. 107 (1912).
m For decisions prior to 1922, apparently leaning toward the appropriation
doctrine, see: LeQuihe v. Chambers, 15 Idaho 405, 413-414, 98 Pac. 415
(1908); Bower v. Moorman, 27 Idaho 162, 181, 147 Pac. 496 (1915); Jones v.
Vanausdeln, 28 Idaho 743, 156 Pac. 615 (1916); In Public Utilities Commis-
sion v. Natatorium Co., 36 Idaho 287,:300, 305, 306, 211 Pac. 533 (1922), it
was held that percolating water, as distinguished from water in a defined under-
ground stream, was not public water but belonged to the owner of the soil, hence
a company delivering such water to consumers was not a public utility. In Union
Central Life Insurance Co. v. Albrethsen, 50 Idaho 196, 202-204, 294 Pac. 842
(1930), waters of a natural ground-water storage basin supplying the flow of a
stream were held subject to appropriation.
'"Hinton v. Little, 50 Idaho 371, 379-3,80, 296 Pac. 582 (1931); Noh v.
Stoner, 53 Idaho 651, 652-653, 26 Pac, (2d) 1112 (1933).
1Silkey v. Tiegs, 51 Idaho 344, 351-353, 5 Pac. (2d) 1049 (1931).
Bear Lake County v. Budge, 9 Idaho 703, 75 Pac. 614 (1904).
SIdaho Code, 42-1401. The section states that the judge "shall" request
the Department to make the examination. The supreme court, in Boise City
Irr. & Land Co. v. Stewart, 10 Idaho 38, 57, 77 Pac. 25, 321 (1904), held that
this legislative declaration was directory, the question of making the request
being left to the sound discretion of the judge. See Blaine County Investment
Co. v. Gallet, 35 Idaho 102, 204 Pac. 1066 (1922), for a construction of the
legislative provision for payment of costs.

tion by the Department of water districts to include stream systems or
independent sources of supply the rights of use of which have been
adjudicated; for the election of waternasters by holders of adjudicated
rights; and for the powers and duties of the watermasters and the
responsibilities of the water users.106


The water law of Kansas is particularly noteworthy in the funda-
mental change that has occurred recently in the relative importance of
the appropriation and common-law doctrines. In 1944 the Kansas
Supreme Court rendered a decision strongly reaffirming the common-law
right of the landowner to running water and ground water on his land,
as against an attempted appropriation. In 1945 the legislature passed
an act intended to establish the effectiveness of the appropriation dop-
trine, as against claimants under the common law. In 1949 this legisla-
tion was approved unqualifiedly by the supreme court.
The first legislation authorizing the appropriation of water, enacted
in1886, provided for the posting and filing of notices of appropriation.10
In 1917 the legislature authorized appropriations of surface or ground
waters initiated by application to the Kansas Water Commission, the
duties of which were transferred in 1927 to the Division of Water
Resources of theState Board of Agriculture.'"1 The two methods of
making appropriations were in effect until 1941, when the oginal
1886 provisions were repealed.10 In 945 the legislature declared that
no appropiative right could be acqiired without first obtaining: the
approval of the Chief Engineer of tie Division of Water Resources,
except in the case of persons using water for domestic purposes as
defined in the statute."0 Apparently, the exclusiveness of the statutory
procedure is established for uses of water other than those so excepted."
Prior to the enactment in 1886 of the earliest appropriation statute,
the Kansas Supreme Court had stated, first, that the riparian right ex-
tended to the entire flow of the stream "without diminution or altera-

SIdaho Code, 15 42-601 to 42-802.
SKans. Laws 1886, ch. 115,l
Kans. Laws 1917, ch. 172; Gen. Stats. Ann. 1935, 1 24-901 to 24-905.
SKans. Laws 1941, ch. 261.
mKais. Laws 1945, ch. 390; Gen. Styts. Supp. 1947, i 82a-705. "'Do-
mestic uses' means the use of water for household purposes, the watering of live-
stock, poultry, farm and domestic animals and the irrigation of gardens and
mThe Kansas Supreme Court, in Clark v. Allaman, 71 Kans. 206, 240, 80
Pac. 571 (1905), stated that prior to 1886 there had been no recognition in
Kansas of rights to the use of water by priority of possession, and that local
customs to that effect had been invalid.

tion,'"I and later that the riparian owner might lawfully use water
for his own domestic and stock-watering purposes.11 In 1905, in Clark
v. Allaman,11 the court extensively reviewed the subject of riparian and
appropriative rights; held that the common-law doctrine of riparian
water rights was fundamental in the jurisprudence of the State; that
the common-law doctrine included the reasonable use of water for
irrigation purposes after the primary uses for domestic purposes had
been subserved; and that the common-law doctrine had been modified
by statutes authorizing the appropriation of water which, however,
could not lead to the destruction of previously vested common-law
rights. The two doctrines, it was believed, could exist in the same
State. There was no departure from these principles until the supremei
court rendered its decision in 1949 construing the legislation of 1945,
although the cases involving riparian rights that reached the supreme
court during that period were not numerous."' It was held in 1936
that the appropriation statute of 1886 did not confer upon a riparian
owner any priority as against other 'riparian owners, whose titles ante-
dited the statute.'- Irin'944, in a case involving ~r und waters, the
common-law doctrine was reaffirmed with respect to both surface and
ground waters; 1t and in 1949 theories concerning the relative rights
of upper and lower riparian owners to the use of water were
Various legislative acts relating to the use of ground waters were
passed' and some of them amended from time to time," and a few
decisions of the supreme court prior to 1944 indicated an early adoption
of the rule of absolute ownership of percolating waters and a, later
tendency toward modification of the strict rule; 10 but the status of the
law of ground waters seemed uncertain. In 1944 the supreme court

tShamlefer v. Council Grove Peerless Mill Co., 18 Kans. 24, 33 (1877).
mEmporia v. Soden, 25 Kins. 588, 604; 606, 37 Am. Rep. 265' (1881). f In
Campbell v. Crimes, 62 Kans. 503, 505, 64 Pac. 62 (1901), the upper riparian
owner was limited to such water as was needed "for his own beneficial uses."
Clark v. Allaman, 71 Kans. 206, 80 Pac. 571 (1905).
m For statements by the court during the earlier part of the period, see Wallace
v. Winfield, 96 Kans. 35, 40, 149 Pac. 693( (191) ; Atchison, Topeka & Santa Fe
Ry. v. Shriver, 101 Kans. 257, 258, 166 Pac. 519 (1917).
mFrizell v. Bindley, 144 Kns. 84, 92, 58 Pa. (2d) 95 (1936). See also
Smith v. Miller, 147 Kans. 40,42, 75 Pac. (2d) 273 (1938).
"m State ex rel Peterson v. State Board of Agriculture, 158 Kans. 603, 605; 610,
149 Pac. (2d) 604 (1944).
SHdislv. Schulz, 167 Kans. 34, 41-44, 204 Pac. (2d) 706 (1949).
m See "Selected Problems in the Law of Water Rights in the West," U. S.
Dept. Agr. Misc; Pub. No. 418, pp. 219-223.
Emporia v. Soden, 25 Kans. 588, 608-609, 37 Am. Rep. 265 (1881); Jobling
v. Tuttle, 75 Kans. 351, 360, 89 Pac. 699 (1907); Gilmore v. Royal Salt Co.,
84 Kans. 729, 731, 115 Pac. 541 (1911).

rendered a decision in an original action in quo warrant to inquire into
the authority of the Division of Water Resources to regulate the taking
of ground waters for beneficial uses; the State agency being involved
because of its hearing of protests against the application of a city to
appropriate ground water.m The court held that water rights in
Kansas were governed by the common law except as modified by statute;
that ground waters were a part of the real property in which they oc-
curred, and that both surface and ground waters were owned by the
owner of the soil; and that no statute authorized the State administrative
agency to regulate or otherwise to interfere with the use and consump-
tion of ground waters or to conduct a hearing upon the application of
anyone who desired to use them.
Later in the same year (1944) a committee appointed by the Gov-
ernor recommended legislation that would modify the common law
sufficiently to effectuate rights of prior appropriation, and at the ensuing
session in 1945 the legislature took action accordingly,"2 The act pro-
vided that "All water within the state of Kansas 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." It also provided that
subject to vested rights, all waters within the State might be appro-
priated for beneficial use, and specifically stated that surface or ground
waters might be so appropriated. Nothing in the act was to impair
the vested right of any person except for nonuse. Vested rights were
defined as rights to continue the use of water actually applied to any
beneficial use at the time of passage of the act or within three years
prior thereto, as well as rights to begin use with works then under con-
struction provided the works were completed and the water applied to
beneficial use within a reasonable timeithereafter. Common-law claim-
ants were declared to be entitled to compensation in an action at law
for proved damages for property taken by an appropriator in connection
with an appropriation. Appropriators under the statute were afforded
injunctive relief against subsequent diversions by common-law claim-
ants "without being required to first condemn possible private rights,"
as well as against uses of water by subsequent appropriators if necessary
to protect their prior rights.
The supreme court upheld the validity of the foregoing legislation in
an action in the nature of quo warrant for determination as to its
constitutionality, upon questions submitted for determination and facts
stipulated by the parties. The court frankly took a different approach
State ex rel. Peterson v. State Board of Agriculture, 158 Kans. 603, 149 Pac.
(2d) 604 (1944). See also Arensman v. Kitch, 160 Kans. 783, 791, 165 Pac.
(2d) 44i (1946).
m Kans. Laws 1945, ch. 390; Gen. Stats. Supp. 1947, ch. 82a, art. 7.
State ex rel. Emery v. Knapp, 167 Kans. 546, 555-556, 207 Pac. (2d) 440

734 \,
from that taken in the solution of water-right questions in previous
decisions. Theretofore the court had approached these questions largely
on the basis of individual interest alone; but under the declaration that
all water within the State was dedicated to the use of the people, sub-
ject to State control and regulation, "we now approach them upon the
basis of the interest 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 predicated alone upon theory be-
come of little if any importance." Broad statements in earlier opin-
ions-such as statements to the effect that the riparian owner is
entitled to the flow of the stream without diminution or alteration-
must now be disregarded or modified to harmonize with this declaration.
All of the questions submitted to the court, asking if the legislation was
unconstitutional upon specific grounds, were answered in the negative.
The 1945 law vests control of the water resources of the State in
accordance with rights of prior appropriation in the Chief Engineer of
the Division of Water Resources. Appropriations for different purposes
that conflict take precedence in the following order: 'Domestic, munici-
pal, irrigation, industrial, recreational, and water power uses." The
right terminates when the holder ceases for three years or more to use
it for the purposes authorized in his permit or certificate. Provision is
made for determinations of rights by the Chief Engineer, subject to
appeal to the district court, and for the distribution of water according
to decrees of adjudication.


The statutes provide that "the unappropriated water of any river,
stream, ravine, coulee, spring, lake, or other natural source of supply"
may be appropriated. Also, "an appropriator may impound flood,
seepage, and waste waters in a reservoir and thereby appropriate the
Montana has no centralized State administrative procedure for the
acquisition of appropriative water rights. A statutory procedure governs
the appropriation of water from adjudicated streams, and a separate
procedure provided by statute applies to unadjudicated streams but
apparently is optional with the intending appropriator; but the State
Engineer has no control in any case. The procedures are as follows:
With respect to unadjudicated waters, the statute provides that the
appropriator shall post a notice at the point of intended diversion, file a
notice of appropriation in the county records -and begin construction
within prescribed periods of time, and prosecute the appropriation
Mont. Rev. Codes 1947, Ann., 89-801.

diligently to completion. It is further provided that failure to comply
with the statutory requirements deprives the appropriator of the right
to the use of water as against a subsequent claimant who complies
therewith, and that by compliance, the right of use relates back to the
date of posting notice, the first step in the procedure.85 This method
of appropriation was first prescribed by statute in 1885.1" Prior to that
enactment, no notice or record of appropriation was required; "A person
acquired a right to the use of water by, digging a ditch, tapping a stream,
and turning water into it, and applying the water so diverted to a
beneficial use. This constituted a valid appropriation of water."'27 In
such cases, if the appropriator exercised reasonable diligence in com-
pleting his appropriation, the priority of his right related back to the
date of commencement of the work.1* The Montana Supreme Court
has held that the legislature, by the law of 1885, did not abolish the
preexisting method of appropriating water by diversion and use; it pro-
vided an additional and alternative method of making an appropriation
which controlled exclusively the doctrine of relation with respect to
appropriations thereafter made.1' That is, only by compliance with
the statute could the benefits of the doctrine of relation be, claimed
with respect to an appropriation made after the enactment.1m But,
in the view of the supreme court, the legislature did not intend that one
who fild -to comply with the statute, but who nevertheless actually
diverted water, could be deprived of it by another who complied with
the statute at a time subsequent to the former's completed appropria-
tion." It seems to be settled that with regard to unadjudicated waters,
a valid appropriation of water can be made even where there is no
compliance with the statute, where water actually is diverted and

SMont. Rev. Codes 1947, Ann., I 89-810 to 89-812.
*'Mont. Laws 1885, p. 130 (March 12, 1885).
Murray v. Tingley, 20 Mont. 260, 268, 50 Pac. 723 (1897).
SWollmns v. Garringer, 1 Mont. 535, 544 (1872); Murray v. Tingley, 20
Mont. 260, 268, 50 Pac. 723 (1897); Wright v. Cruse, 37 Mont. 177, 181-183,
95 Pac. 370 (1908); Bailey v. Tintinger, 45 Mont. 154, 171, 122 Pac. 575
(1912); Maynard v. Watkins, 55 Mont. 54, 56, 173 Pac. 551 (1918).
"Murray v. Tingley, 20 Mont. 260, 268-269, 50 Pac. 723 (1897); Bailey v.
Tintinger,45 Mont. 154,171-172,122 Pac. 575 (1912).,
SMurray v. Tingley, 20 Mont. 260, 269, 50 Pac. 723 (1897); Baily v.
Tintinger, 45 Mont. 154, 168-170, 122 Pac. 575 (1912); Maynard v. Watkins,
55 Mont. 54, 56, 173 Pac. 551 (1918); Allen v. Petrick, 69 Mont. 373, 384,
222 Pac. 451 (1924). Necessity of diligence in completing a statutory appro-
priation: Anaconda National Bank v. Johnson, 75 Mont. 401, 408-410, 244
Pac. 141 (1926); Anderson v. Spear-Morgan Livestock Co., 107 Mont. 18, 29,
79 Pac. (2d) 667 (1938).
Murray v. Tingley, 20 Mont. 260, 269, 50 Pac. 723 (1897).



applied to beneficial use; that "compliance is important only with regard
to the doctrine of 'relation back' *, on due compliance."'m
With respect to adjudicated waters, the appropriator must employ
an engineer to make a survey of the diversion works, and must file a
petition with the county court containing a declaration that the water
rights sought to be acquired shall be subject to the terms of any adjudica-
tion decree. Parties who may be affected are made defendants; and
on conclusion of the trial the court may enter an interlocutory or perma-
nent decree allowing the appropriation subject to prior adjudicated
rights. Failure to comply with the statutory provisions deprives the
appropriator of the right to use water as against a subsequent appro-
priator mentioned in or bound by a decree of the court.1" MThe pro-
cedure under the present law, originally enacted in 1921, replaced a
procedure provided for in 1907 which included posting of notice, prose-
cuting the work to completion with reasonable diligence, filing
of application with the court to have the ditch capacity determined,
examination by an engineer, and order by the court after hearing of
objections if any should be filed." The supreme court held that in-
sofar as the act of 1907 was concerned,,the legislature did not intend to
declare that one who failed to comply with the terms of the statute, but
who in the absence of any conflicting adverse right nevertheless had
actually impounded, diverted, and put the water to a beneficial use,
should acquire no title thereto; 1" but that the 1921 legislature unques-
tionably intended that an appropriation of the waters of an adjudicated
stream should not be made thereafter without a substantial compliance
with the requirements of the statute then enacted, and that the method
prescribed therein must be held to be exclusive.1x" One who thus ap-
propriates water from an adjudicated stream is simply a junior appro-
priator, with the rights and disabilities of an appropriator whose right
is junior to the rights adjudicated in the original decree."'
SVidal v. Kensler, 100 Mont. 592, 594-595, 51 Pac. (2d) 235 (1935).
As recently as 1949 the supreme court stated that a person may nmae a valid
appropriation of water by actual diversion and use thereof without filing a
notice of appropriation as defined in the sections of the statute relating to the
appropriation of unadjudicated waters: Clausen v. Armington, Mont. -, 212
Pac. (2d) 440,.447-448 (1949).
'Mont. Rev. Codes -1947, Ann., 89-829 to 89-844; Mont. Laws 1921,
ch. 228.
m Mont. Laws 1907, ch. i85.
'Donich v. Johnson, 77:Mont. 229, 246, 250 Pac. 963 (1926). The ques-
tion as to whether the method provided by the 1907 law was intended to be
exclusive had been reserved in Anaconda National Bank v. Johnson, 75 Mont.
401, 409, 244 Pac. 141 (1926).
'Anaconda National Bank v. Johnson, 75 Mont. 401, 411, 244 Pac. 141
(1926); Donich v. Johnson, 77 Mont. 229, 246, 250 Pac. 963 (1926).
Quigley v. Mclntosh, 88 Mont. 103, 109, 290 Pac. 266 (1930).

The riparian doctrine has been repudiated in Montana. For many
years there was doubt as to the proper classification of the StateC ith
respect to this feature of water law; occasioned by observations con-
cerning the riparian doctrine made from time to time in decisions of
the supreme court. Those comments, however, were characterized as
purely dicta by that court in a decision rendered in 1921 in a case in
which, for the first time in the judicial history of Montana, there was
squarely presented for consideration a claim of riparian right as against
alaim of appropriative right.us The court, feeling at liberty to treat
the matter as one of first impression, concluded that the common-law
doctrine of riparian rights had never prevailed in the jurisdiction'since
the enactment of the Bannack Statutes in 1865."9 The repudiation
of the riparian doctrine is complete; it applies to the use of water for
"the so-called natural purposes: domestic use and watering livestock,"
as well as to irrigation.'1
The distitinon commonly made between ground waters flowing in
defined subterranean channels and percolating waters is observed in
Montana. It is held that subsurface water flowing in defined channel
reasonably ascertainable is subject to the same rules of law as water
flowing in surface streams, which in this jurisdiction i the appropria-
tion doctrine."L The subsurface supply of a stream, wheheer coming
from tributary swamps or flowing in the sand and gravel constituting
the bed of the stream, is as much a part of the stream as is the surface
flow and is governed by the sarie rules. In the very few decisions in
which rights of use of percolating waters were discussed, the rule of
ownership by the owner the ow the overlying land, subject to the limitation
that the use be made without malice or negligence, has been acknowl-
edged or conceded."~ The supreme court stated, in a recent decision
involving water deposited in "pot holes" which soon thereafter disap-
peared entirely in the earth below: "When that happens, it loses its
character as flow water and is no longer subject to the regulations of
law which govern while it is capable of direction and control. Its
identity and its ownership then become the same as that of ie soil of
SMettler v. Ames Realty Co., 61 Mont. 152, 165, 1.66, 170-171, 201 Pac. 702
The First Territorial Legislative Assembly passed an act, approved January
12, 1865, authorizing owner or holders of possessory rights in land on or in the
neighborhood of any stream to use the water for irrigation and to have rights
of way for ditches over intervening property: Bannack Statutes, p. 367.
Wallace v. Goldberg, 72 Mont. 234, 244, 231 Pac. 56 (1925).
SHiger v. Sieben, 38 Mont. 93, 95, 98 Pac. 881 (1909); Ryan v. Quinlan,
45 Mont. 521, 533-534, 124 Pac. 512 (1912).
4 Smith v. Duff, 39 Mont. 382, 390, 102 Pac. 984 (1909).
'"Ryan v. Quinlan, 45 Mont. 521, 532-533, 124 Pac. 512 (1912); Rock
Creek Ditch & Flume Co. v. Miller, 93 Mont. 248, 260, 17 Pac. (2d) 1074

which it forms a part." 14 Seepage water forming a natural accretion
to a stream is a part of the stream; an appropriator on the stream has
the right to all such tributary flow even as against the owner of the land
on which it rises.1
Appropriative rights in Montana are not subject to statutory for-
feiture, that is, to loss for nonuse occurring over a prescribed period of
years. The statutes providethat upon abandonment and cessation of
use of water by the appropriator or his successor in interest, the right
ceases; but that questions of abandonment shall be questions of fact,
to be.determined as other questions of fact.4 Issues of abandonment
of water rights have been raised in a number of cases decided by the
supreme court."1
Determinations of water rights are made solelyby the courts, but a
procedure is provided by statute under which the State Watefr Con-
servation Board may initiate adjudications of rights of use of the waters
of streams by directing the State Engineer to bring actions. The State
Engineer or any party may apply to the court for the appointment of a
referee to whom the court may submit any and all issues of fact. The
making of hydrographic surveys by theState Engineer, to be introduced
in evidence, is provided for,1~4 Commissioners may be appointed by
the courts, upon petition of parties affete for the purpose of dis-
tributing water to the holders of decreed water rights.'"


The constitution of Nebraska dedicates the use of the water of every
natural stream to the people of the State, and provides that the right
to divert unappropriated waters thereof for beneficial use shall never
be denied except when such denial is demanded'by the public interests"0
It is also declared that the necessity of water for domestic and irrigation
purposes is a natural want; 151 that priority of appropriation shall give
the better right as between users of water for the same purpose, but that
in the event of insufficiency of supply domestic purposes have first
preference and agriculture has preference over manufacturing; pro-

Woodward v. Perkins, 116 Mont. 46, 52, 147 Pac. (2d) 1016 (1944),
citing Ryan v. Quinlan, 45 Mont. 521, 532, supra, footnote 143.
Beaverhead Canal Co, v. Ditlon Electric Light & Power Co., 34 Mont. 135,
140-141, 85 Pac. 880 (1906); Woodward v. Perkins, 116 Mont. 46, 53-54,
147 Pac. (2d) 1016 (1944).
Mont. Rev. Codes 1947, Ann., 89-802.
The principles of abandonment are well stated in Thomas v. Ball, 66
Mont. 161, 166-168, 213 Pac. 597'(1923).
Mont. Rev. Codes 1947, Ann., 89-847 to 89-855.
SMont. Rev. Codes 1947, Ann., 89-1001 to 89-1024.
"Nebr. Const., art. XV, f 5 and 6.
Nebr. Const., art. XV, 4.

vided, that no inferior right may be acquired by a superior right without
just compensation.? The constitution provides further that the use
of water for power purposes shall never be alienated, butmay be leased
or otherwise developed as prescribed by law." The statute governing
the appropriation of water requires the holder of an approved appli-
cation for water power, before using the water, to lease from the State
the u e of all water so appropriated, such lease to run for not more
than 50 years. Upon expiration of the lease the value of improvements
is to be appraised by the State Department of Roads and Irrigation,
subject to appeal to court, and the value as finally determined is to be
paid to-the lesee owning such improvements by any subsequent lessee."
Jursdiction over all matters pertaining to water rights for irrigation,
power, or other useful purposes is vested in the Department of Roads
and Irrigation." The statute provides an exclusive procedure for
appropriating water, the first step being the making of an application
to the Department for a permit, the Department to issue a certificate
when the prerequisites for a completed appropriation have been com-
plied within When the use of appropriated water ceases, the right
ceases. It is the duty of the Department, if it finds that an appropria-
tibn has not been used beneficially for more than three years, to hold
a hearing to determine whether the right shall not be declared forfeited,
Nebr. Const., art XV, 1 6. The preference in favor of domestic purposes
was placed in the constitution in 1920. A similar statutory preference (Rev.
Stats. 1943, 46-204), enacted much earlier, did not provide for compensa-
tion; but.the Nebraska Supreme Court held that, vested rights of completed
appropriations could not be destroyed without compensation: Kearney Water &
electric Powers Co. v. Alfalfa Irrigation Dist., 97 Nebr. 139, 146, 149 N. W. 363
(1914). In a case decided in 1942, a public power and irrigation district con-
tended that it had the right to take water in excess of its appropriations as
against a prior appropriation for power purposes, as long as the water could be
put to beneficial use in the irrigation of farm lands: Lou River Public Power
Dist. v. North Loup River Public Power & Irr. Dit., 142 Nebr. 141, 151-152,
156, 5 N. W. (2d) 240 (1942). The supreme court stated: "It was clearly the
intention of the framers of our Constitution to provide that water previously
appropriated for power purposes may be taken and appropriated for irrigation
use upon the payment of'just compensation therefore. It never was the inten-
tion of the framers of the Constitution to provide that water appropriated for
power purposes could thereafter arbitrarily be appropriated for irrigation with-
out the payment of compensation. We necessarily come to the con-
clusion that a senior appropriative right for power purposes may not be destroyed
by a superior user except by the employment of formal condemnation proceed-
ings and the tender of compensation prior to interference."
"Nebr. Const., art. XV 7.
Nebr. Rev. Stats. 1943, 146-236.
SNebr. Rev. Stats. 1943, 46-209.
"Nebr. Rev. Stats. 1943, I 46-233 to 46-243. Exclusiveness of present
statutory procedure: Enterprise Irr. Dist. v. Tri-State Land Co., 92 Nebr. 121,
147-148, 138 N. W. 171 (1912); Kersenbrockv. Boyes, 95 Nebr. 407, 409-411,
145 N. W. 837 (1914).


appeal lying to the supreme court from the Department's decisiqn.15T
The riparian doctrine is a part of the water law of Nebraska, but its
practical importance in relation to that of the appropriation doctrine
has been substantially reduced as the result of decisions of the supreme
court. The existence of the riparian doctrine, as modified by the irri-
gation statutes, was recognized in several early decisions.158 Two de-
cisions rendered in 1903, on the same day, thoroughly considered the
law of riparian rights and held it applicable to every part of the State
except as altered or supplemented by legislation.s18 Two other de-
cisions, rendered on rehearing in 1905 on the same day, had the effect
of putting the riparian owner who does pot make actual use of the water
before the time of vesting of appropriative rights in a position where he
has no recourse other than to recover such damages for the impair-
ment of his riparian rights as he can actually prove, thus eliminating
much of the common-law advantage,of location of the riparian land
with respect to appropriative rights on the same stream."
The Nebraska Supreme Court in 1933 approved what it termed the
American rule of reasonable and beneficial use of percolating ground
waters upon the overlying land, with a reasonable proportion to each
owner of overlying land if the supply is insufficient for all.m Such
approval was' given in a decision in which is was not necessary, in
sustaining the trial court's judgment, to adopt the rule in question.
However, the supreme court stated subsequently, referring to that case:
"We are committed to the rule: 'The owner of land is entitled to appro-

'"Nebr. Rev. Stats. 1943, 46-229, amended Sess. Laws 1947, ch. 172.
Prior to the 1947 amendment, the section had provided that an appeal might
be taken to the district court of the county in which the point of diversion was
situated. Based upon that statutory authorization, the supreme cougt hfld in
1930 that the taking of appeal to the district court instead of directly to the
supreme court was proper: State v. Oliver Bros., 119 Nebr. 302, 303, 228 N. W.
864 (1930). The provision is not unconstitutional: Kersenbrock v. Boyes, 95
Nebr. 407, 409-411, 145 N. W. 837 (1914); Dawson County Irr.,Co. v. Mc-
Mullen, 120 Nebr. 245, 247,250,231 N. W. 840 (1930).
'Eidemiller Ice Co. v. Guthrie, 42 Nebr. 238, 253, 60 N. W. 717 (1894);
Clark v. Cambridge 4? Arapahoe Irr. & Improvement Co., 45 Nebr. 798, 806, 64
N. W. 239 (1895); Slattery v. Harley, 58 Nebr. 575, 577, 79 N. W. 151 (1899).
Crawford Co. v. Hathaway, 67 Nebr. 325, 339, 342, 93 N. W. 781 (1903);
Mengv. Cofee, 67 Nebr. 500, 511-512, 93 N. W. 713 (1903).
McCook Irr. & Water Power Co. v. Crews, 70 Nebr. 109, 121-127, 96 N. W.
996 (1903), 102 N. W. 249 (1905); Cline v. Stock, 71 Nebr. 70, 80-83,98 N. W.
454 (1904), 102 N. W. 265 (1905). For later decisions in which riparian
rights were considered, see: Southern Nebraska Power Co. v. Taylor, 109 Nebr.
683, 686-687, 192 N. W. 317 (1923); Slattery v. Dout, 121 Nebr. 4-18, 420, 237
N. W. 301 (1931); Fairbury v. Fairbury Mill & Elevator Co. 123 Nebr. 588,
592, 243 N. W. 774 (1932); Osterman v. Central Nebraska Public Power &
Irr. Dist., 131 Nebr. 356, 362-366, 268 N. W. 334 (1936); McGinley v. Platte
Valley Public Powero Irr. Dist., 132 Nebr. 292,296-298, 271 N. W. 864 (1937).
Olson v. Wahoo, 124 Nebr. 802, 811, 248 N. W. 304 (1933).

private subterranean waters found under his land, but his use thereof
must be reasonable, and not injurious to others who have substantial
rights in such waters.' Even more recently, in affirming judgment
for damages against a public power dvitrict, the supreme court rejected
the district's contention that the common law was in force in Nebraska
as to subsurface percolating waters'ad that it had a lawful right to
dig on its own land without liability for resulting drainage of subsurface
waters from adjacent lands, and reaffirmed the principle that the
American rule of reasonable use, in. conflict with the common law, had
been adopted in Nebraska and was the law in that State."
Determinations of water rights are made by the Department,"" from
whichappeal may be taken to the sUpreme court.~' If not appealed
from, these determinations constitute final adjudications and cannot
be collaterally attacked.' This statutory procedure of adjudication of
water rights was taken from the procedure established in Wyoming.
The supreme court held in 1943 that the legislative grant of jurisdiction
to the Department did not include the power to adjudicate vested
rights or to make an adjudication with respect to the apportionment of
water between users after diversion into common private ditches, that
being a function belonging to the courts." Distribution of water from
streams to the holders of water rights s made, under the direction of the
Department, by superintendents of two statutory water divisions and

m Osterman v. Central Nebraska Public Power & Ir. Dist., 131 Nebr. 356,
365, 268 N. W. 334 (1936), citing Olson v. Wahoo, supra (footnote 161).
"Luchsinger v. Loup River Public Power Dist., 140 Nebr. 179, 181-183,
299 N. W. 549 (1941). The supreme court stated that subirrigation in the
natural condition of land used forfarming was a valuable property right attached
to the land itself, citing the Osterman case (footnote 162) which in turn cited
Olson v. Wahoo (footnote 161). The court went on to state that a rule of law
in conflict with the common law of England had been adopted in Nebraska in
language quoted from Olson v. Wahoo stating the principles of the American
rule. "It is argued, however, that this is dictum in the opinion in which it
appears and not binding on defendant in the present controversy. Whatever
may be thought of its applicability to the case in which the rule was adopted,
it answers for itself as a sound proposition of law c~sehtial to the protection of
property rights of private individuals and is consistent with the Constitution and
kch morality and justice. The American rule is not only law in
Nebraska, but it applies to property damaged for public se as well as to property
taken for publicuse. *"
Nebr. Rev. Stats. 1943, IS 46-226,46-230 to 46-232.
Nebr. Rev. Stats. 1943, 46-210.
Frmnes'l Irr. Dist. v. Frank, 72 Nebr. 136, 152, 100 N. W. 286 (1904);
Enterprise Jli. Dist. v. Tri-State Land Co., 92 Nebr. 121, 135, 149-150, 138
N. W. 171 (1912), writ of error dismissed, Enterprise Irr, Dist. v. Farmers
Mutual Canal Co., 243 U. S. 157 (1917) ; In re Claim Afidavit of Parsons, 148
Nebr. 239, 243,27 N. W. (2d) 190 (1947).
M Plunkett v. Parsons, 143 Nebr. 535, 540, 10 N. W. (2d) 469 (1943).

by commissioners of water districts created by the Department within
the water divisions."*


The water of all sources of water supply, whether above or below the
surface of the ground, i declared by statute to belong to the public
and, subject to existing rights, to be available for appropriation for
beneficial use.1" An exclusive procedure for the appropriation of
water is provided, the first step being an application to the State Engi-
neer for a permit; the applicant being entitled to the issuance of a cer-
tificate upon making satisfactory proof that the appropriation has been
completed in accordance veth the requirements of the statute" Ap-
propriations of water for watering range livestock are subject to special
procedure, which includes applications; to the State Enigineer, and
which protects subsisting rights to water'range livestock at particular
places.17 In case of failure to make beneficial use of water during five
successive years, the right is forfeited and the water so formerly appro-
priated may be appropriated again by any qualified person.7 "
The Nevada Supreme Court had for decision in 1949 the question
as to whether a water right could be acquired by prescription against
the owner of a right vested by diversion and beneficial use prior to
1903,1T" the adverse use beginning in 1933. The court cited an early
decision as authority for the settled principle that prior to the enact-
ment of the water law, a water right already in existence might be ac-
quired by another by adverse use, and stated that it was not then pre-
pared to overrule that decision nor to read into the water law some-
thing not found there even by implication. However, this conclusion
was reached reluctantly; the court believed "that adverse use is wholly
unwarranted, unnecessary and clearly dangerous to the appropriation
and distribution of public property" and expressly invited the attention

Nebr. Rev. Stats. 1943, 54 46-215 to 46-225.
"Nev. Comp. Laws 1929, 7890 and 7891.
WNev. Comp. Laws 1929, 5S 7944 to 7962.
"tNev. Comp. Laws 1929, if 7979 to 7985.
Nev. Comp. Laws. 1949 Supp.,, &7897 (amendment by Sess. Laws 1949,
ch. 83). The legislature had the right to provide or forfeiture of appropriative
rights acquired after the date of enactment; but the only way in which preeistng
rights could be lost was by intentional abandonment, for forfeiture would impair
such rights contrary to another section of the statute providing that nothing
contained therein should impair any vested right to the use of water; In re Manse
Spring and Its Tributaries, 60 Nev. 280, 289-291, 108 Pac. (2d) 311 (1940).
m Application of Filippini, Nev. -, 202 Pac. (2d) 535,539-541 (1949).
The office of State Engineer was created by Nev. Sess. Laws 1903, p. 18;
and the procedure of initiating appropriations of water by making application
to the State Engineer was provided by Sess. Laws 1905, p. 66.
Authors v. Bryant, 22 Nev. 242,38 Pac. 439 (1894).

of the legislature to the problem. The legislature, then in session,
amended the water appropriation statute to provide that no prescriptive
right to the use of any public water whether appropriated or unappro-
piiated coild be acquired by adverse use or adverse possession for any
period of time whatsoever; that any such right to appropriate any water
must be initiated by making application to the State Engineer fora per-
nit and not otherwise."6
The riparian doctrine; although at one time recognized in Nevada,
was repudiated in 1885.1" The supreme court, in so rejecting that
doctrine, specifically overruled a former decision 2m in which land pat-
ented by the United States prior to the congressional enactment of
July 26, 18661 was held to have riparian rights as against a prior
appropriator. There has been no recognition of the riparian doctrine
Sinsubsequent decisions."~
Early decisions or expressions of opinion by the Nevada Supreme
Court were to the effect that percolating waters belonged to the owner
of the overlying land, except in the case of water percolating to a creek
from a spring which supplied water to the rek."s In 1939 a com-
Sprehensive act relating to th appropriation of ground waters was
passedm which repealed and replaced earlier legislation s and rwlich
was extensively amended in 1947 and 1949.1" All ground waters are
declared to belong to the public and to be subject to appropriation only

SNev. Sess. Laws 1949, ch. 83, amending Comp. Laws 1929, 7897; Comp.
Laws 1949 Supp., I 7897.
Jones v. Adams, 19 Nev. 78, 84-88, Pac. 442 (1885). Riparian rights
were referred to, but were not the basis of decision in: Lobdell v. Simpson, 2
Nev. 274, 276-278 (1866); Ophir Silver Mia. Co. v. Carpenter, 4 Nev. 534, 543
(1869); Covington v. Becker, 5 Nev. 281, 2$2-283 (1869).
SVasickle v. Haines, 7 Nev. 249, 256-257 (1872). To the same effect:
Union Mill & Min. Co. v. Ferris, 2 Saw. 176, 24 Fed. Cas. 594 (1872).
m 14 Stat. L. 253, 5 9, U. S. Rev. Stats., 2339.
SSee Reno Smelting, Mill, & Reduction Works v. Stevenson, 20 Nev. 269,
21 Pac. 317 (1889); Twaddle v. Winters, 29 Nev. 88, 105-107, 85 Pac. 280
(1906), 89Pac. 289 (1907) ; In re Humboldt River, 49 Nev. 357, 361-362, 24
Pac. 692 (1926); Steptoe Live Stock Co. V. Galy,; 53-Nev. 163, 172, 295 Pac.
772 (1931); In re Manse Spring and Its Tributaries, 60 Nev. 280, 286, 108
Pac. (2d) 311 (1940).
SMosier v. Caldwell, 7 Nev. 363, 366-367 (1872); Strait v. Brown, 16 Nev.
317, 321, 323 (1881). See comments and citations in Cardelli v. Comstock
Tunnae Co., 26 Nev. 284, 295-297, 66 PacJ 950 (1901), in which, however, the
question of rights of owners of overlying lands to percolating waters was not
passed upon.
"Nev. Sess. Laws 1939, ch. 178; Comp. Laws 1941 Supp., i 7993.10 to
"Nev. Sess. Laws 1915, ch. 210; Comp. Laws 1929, 7987 to 7993;
amended Sess. Laws 1935, ch. 184, and Sess. Laws 1937, ch. 149.
"Nev. Sess. Laws 1947, ch. 43, and Seas. Laws 1949, ch. 103; Comp. Laws
1949 Supp., 7993.11 to 7993.21.

. ....

under the State laws relating to the appropriation of water; but the
development of ground water for domestic purposes where the draught
does not exceed two gallons per minute is exempted from regulation.
Appropriations are made under the procedure provided in the general
water law, the first step in which is an application to the State Engineer
for a permit to make the appropriation. Certain provisions, however,
relate to the time of installation of the well in relation to the dates of
enactment of earlier legislation."5 Failure for five successive years to
make beneficial use of ground water works a forfeiture of an undeter-
mined right and an abandonment of a determined right. Administra-
tiori of the provisions of the act, which cover the acquirement and loss
of rights, adjudication of rights, and withdrawal of water in time of
shortage, is vested in the State Engineer.
The State Engineer, either upon his own initiative or upon petition
of one or more water users, may determine the rights to the use of
the waters of a stream. His order of determination is filed in court,
whereupon it has the legal effect of a complaint in a civil action. At
the conclusion of the: trial a decree is entered affirming or modifying
the order of the State Engineer.1" The administration of the statutes
providing for the distribution of water and for the creation of water
districts is vested in the State Engineer.187

New Mexico

The constitution of New Mexico declares that the unappropriated
water of every natural sti;eam, perennial or torrential, belongs to the
public and is subject to appropriation for beneficial use, priority of
appropriation giving the better right.18
The general water appropriation statute contains a provision with
respect to appropriable waters similar to the constitutional provision
above noted.18 It provides also that flood waters may be appropriated
upstream under conditions that would result in a considerable return
flow above the works of other appropriators.m0 "Artificial surface
waters" escaping from projects or constructed works are declared to
be primarily private and subject to beneficial use by the owner or de-
veloper. However, when such waters pass unused beyond his control
and into a natural stream, and have not been used beneficially by him
for a period of four years:from their first appearance, they are subject
to appropriation, but the appropriator gains no right to compel the
MNev. Sess. Laws 1947, ch. 43, 9; Comp. Laws 1949 Supp., 7993.18.
SNev. Comp. Laws 1929, 7905 to 7923.
'"Nev. Comp. Laws 1929, 7939 to 7942.
"N. Mex. Const., art XVI, 2.
"N. Mex. Stats. 1941, Ann., 77-101.
"N. Mex. Stats. 1941, Ann., 77-528.

owner or developer to continue the water supply otherwise than by
contract, grant, dedication, or condemnation.m" An intending appro-
priator must make application to the State Engineer for a permit;
upon completion of works the State Engineer issues to the permitted
a certificate of construction, and upon application of the water to
beneficial use, a license to appropriate the water." Apparently
this is the exclusive procedure for appropriating waters to which the
statute applies.ue The water right is forfeited if the holder fails to
use the water beneficially for a period of four years, except in the case
of water for storage reservoirs; but the present statute contains a
proviso to the effect that forfeiture! shall not necessarily occur if
circumstances beyond the control of ihe holder have caused nonuse,
such that the water could not be placed to beneficial use by his diligent
efforts.U" Stockmen or stock owners who construct water tanks or
ponds having a capacity of 10 acre-feet or less, for watering stock,
are exempted from the requirements of the water appropriation
statute." -An early statute, still extant, accords certain preference
rights to the use of waters to unincorporated communities in which
the population exceeds 3,000."
The riparian doctrine has been consistently rejected in New Mexico.
The rritorial supreme court held that the common law as to rights

N. Mex. Stats. 1941, Ann., 77-525.
"XN. Mex. Stats. 1941, Ann., 77-501 to 77-521.
"See Farmers' Development Co. v. Rayado Land & Irr. Co., 28 N. Mex.
357, 368, 213 Pac. 202 (1923).
"mN. Mex. Stats. 1941, Ann., 77-526. The proviso was enacted in 1941:
N. Mex. Laws 1941, ch. 126. Prior to the enactment of this proviso, the section
had been construed by the New Mexico Supreme Court in several cases. The
court held in 1911 that this legislation was declaratory of previous judicial law,
except that previously no specific time limit had been set: Hagerman Irr. Co.
v. MeMurry, 16 N. Mex. 172, 179-180, 113 Pac. 823 (1911). The court held
later that this section refers to quantity of water and not to period of use; that is,
the appropriator under the present statute may hold his right by using, in good
faith, at any time during the year, the quantity of water so appropriated:
Harkey v. Smith, 31 N. iMex. 521, 528-529, 247 Pac. 550 (1926). In 1937 it
was stated that'whe water fails to reach the point of diversion without the
fault of the appropriator and he is at all times ready and willing to put the water
to the usual beneficial use, there is no forfeiture of his right for nonuser: New
Mexico Products Co. v. New Mexico Power Co., 42 N. Mex. 311, 321, 77 Pac.
(2d) 634 (1937). In 1950 the court held that a forfeiture did not take
place where, throughout the periods of nnnuse, irrigation was impractical or
impossible because of droughts: Chavez v. Gutierrez, 54 N. Mex. 76, 213 Pac.
(2d) 597, 600 (1950). Referring to 77-526 of the 1941 Compilation, which
contained the proviso above noted, the court stated: "Our statutes recognize
the unfairness in loss of a water right through nonuse where conditions beyond
the control of the owner of such right prevent use."
"N. Mex. Stats. 1941, Ann., 77-803. Applied in: First State-Bank of
Alamogordo v. McNew, 33 N. Mex. 414,427,269 Pac. 56 (1928).
"'N. Mex. Laws 1889, ch. 70; Stats. 1941, Ann., 14-4501.

of riparian owners was not in force in that jurisdiction;197 that the
law of prior appropriation had existed under the Republic of Mexico
and had been the settled law of the Territory by legislation, custom,
and judicial decision; 18 and that the appropriation doctrine had
superseded the riparian doctrine as a matter of necessity arising from
the climatic and agricultural conditions of the region.1' The State
supreme court has held to the same effect."s
New Mexico, while not the first State to enact ground-water legisla-
tion, has pioneered in this field in that its ground-water administrative
statute, after having been declared unconstitutional and subsequently
reenacted in corrected form, was the first of the Western State ground-
water. statutes to be put into active operation and has set the pattern
for much of the subsequent legislation in that field in the West. The
first New Mexico statute, enacted in 1927,20 was declared invalid in
Yeo v. Tweedy 20 because it violated a constitutional prohibition
against legislation by mere reference to title of preexisting legislation.
However, the supreme court held in that case that the 1927 statute,
while objectionable in form, was declaratory of existing law, was not
subversive of vested rights of owners of lands overlying the waters of
an artesian basin the boundaries of which had been ascertained, and
was fundamentally sound; At the ensuing session of the legislature
the present law was enacted; and it hasbeen amended or supplemented
subsequently in various particulars 3 This law provides that the
waters of underground streams, channels, artesian basins, reservoirs, or
lakes, having reasonably ascertainable boundaries, belong to the public
and are subject to appropriation. Intending appropriators for
irrigation or industrial uses of water must first make application to the
State Engineer for permits. Claimants of vested ground-water rights
may file declarations of their claims. Water rights not exercised for
four years are forfeited. In certain instances artesian conservancy
districts and the State Engineer have concurrent authority in regulating
the installation and use of artesian wells.2"

Trambley v. Luterman, 6 N. Mex. 15,25,27 Pac. 312 (1891).
United States v. Rio Grande Dam & Irr. Co., 9 N. Mex. 292, 306, 51 Pac.
674 (1898).
Albuquerque Land & Irr. Co. v. Gutierrez, 10 N. Mex. 177, 236-237,
61 Pac. 357 (1900); Hagerman Irr. Co. v. McMurry, 16 N. Mex. 172, 181-182,
113 Pac. 823 (1911).
"Snow v. Abalos, 18 N. Mex. 681, 693, 140 Pac. 1044 (1914); Carlsbad
Irr. Dist. v. Ford,46 N. Mex. 335,341,128 Pac. (2d) 1047 (1942).
m N. Mex. Laws 1927, ch. 182.
Yeo v. Tweedy, 34 N. Mex. 611,286 Pac. 970 (1930).
'N. Mex. Laws 1931, ch. 131; Stats. 1941, Ann., 77-1101 to 77-1111;
Laws 1943, ch. 70; Laws 1947, ch. 21; Laws 1949, ch. 178.
2"N. Mex. Stats. 1941, Ann., 77-1201 to 77-1212. See Pecos Valley
Artesian Conservancy Dist. v. Peters, 50 N. Mex. 165, 183, 173.Pac. (2d) 490

The constitutionality of the ground-water law, which for nearly two
decades has been taken for.granted, now is under attack in a group of
cases on appeal to the Supreme Court of New Mexico.S2' The trial
court held in these cases that both the artesian waters and the shallow
ground waters in litigation were public waters, a valid right to the use
of which could be obtained after the effective date of the 1931 law only
by compliance with the provisions of that law. It was further held that
the law of 1931 did not infringe either the State constitution or the
Federal constitution, but was a valid exercise of the police power of the
State in the regulation of the use of its public waters; and that the de-
cision in Yeo v. Tweedy had become a rule of property and should not
be disturbed or reconsidered. The appeal was argued before the su-
preme court in August 1950. Counsel for the defendants contended
in the argument, according to a newspaper account,0m that there was
no basis in law or custom for the decision in Yeo v. Tweedy, which re-
sulted in enactment of the 1931 law, whereas counsel for the State
contended that that decision had become a rule of property in the
State and that upsetting it would involve millions of dollars in damages.
Adjudications of water rights are made exclusively in the couqrs.
Upon completion of the hydrographic survey of any stream system by
the State Engineer, the Attorney Ge~eral is authorized to initiate a
suit on behalf of the State to determine all water rights concerned,
unless such suit has been brought by private parties. In any suit to
determine water rights all claimants are to be made parties, and the
court is required by statute to direct the State Engineer to furnish a
complete hydrographic survey.20 The State Engineer has supervision
over the apportionment of waters, may create water districts, and may
appoint watermasters upon application of water users within districts."
The statute provides that such supervision shall extend to the apportion-
ment of water according to licenses issued by the State Engineer and
adjudications of the courts?.0 The old established "community
acequias", which base their rights upon Spanish and Mexican laws
and customs and some of which antedated the acquisition of the terri-
tory by the United States, are accorded certain preferences in respect
to public regulation."

State ei ret. Bliss, State Engineer v. Doritz et al., in the District Court
of Chavez County, New Mexico, Nos. 13791, 13883, and 14928.
M Albuquerque Journal, Albuquerque, N. Mex., August 29, 1950.
n"N. Mex. Stats. 1941, Ann., 77-402, 77-404 to 77-410.
N. Mex. Stats 1941, Ann., JJ 77-201 to 77-305.
*N. Mex. Stats. 1941, Ann., 77-209. See Vanderwork v. Hewes, 15
N. Mex. 439, 443-446, 449, 110 Pac. 567 (1910); Pueblo of Isleta v. Tondre,
18 N. Mex. 388, 392, 137 Pac. 86 (1913).
"N. Mex. Stats. 1941, Ann., 77-502 and 77-802. Pueblo of Isleta v.
Tondre, 18 N. Mex. 388, 392, 137 Pac. 86 (1913).

North Dakota

The constitution of North Dakota provides that all flowing streams
and natural watercourses shall forever remain the property of the State
for mining, irrigating, and manufacturing purposes.2n
It is provided by statute that all waters from all sources of supply
belong to the public and are subject to appropriation for beneficial
use." Appropriations of water are initiated by making application
to the State Engineer for permits; the State Engineer, subject to the
approval of the Water Conservation Commission, may grant water
rights. On completion of works a certificate of construction is issued,
and on application of the water to beneficial use, a license to ap-
propriate the water is issued.218 Failure to use water beneficially for
three years results in forfeiture of the right.'4 Another statute pro-
vides: for the reversion to the public of water formerly appurtenant
to land but the use of which has been abandoned."5
The possessor or owner of agricultural land desiring to utilize for
irrigation or stock watering purposes the flood waters of any draw,
coulee, stream, or Watercourse having a flow of not to exceed one-
third cubic foot per second during the greater part of the year, may
file a location certificate with the State Engineer. This is approved
and becomes a permit to appropriate water if no objection .is filed;
if objections are filed, the general appropriation procedure governs.21
SRiparian rights in the Territory of Dakota were recognized by the
United States Supreme Court in Sturr v. Beck,216 a case appealed from
the supreme court of the Territory. Reference was made in that deci-
sion to a Territorial statute to the effect that the owner of land owned
water standing on or flowing over or under the surface of the ground
but not forming a definite stream, and that the landowner might use
the water of a definite natural surface or subterranean stream while on
his land but that he might not prevent its natural flow.217 That statute
was carried over into the laws of the State of North Dakota and is
still on the statute books.18 The State supreme court held that the
common-law doctrine of riparian rights was in force in the Territory
at the time of the adoption of the State constitution, and that such rights
could not be divested by the constitutional provision declaring that all
streams and watercourses shall remain the property of the State for

N. Dak. Const., 210.
m N. Dak. Rev. Code 1943, 61.0101.
"N. Dak. Rev. Code 1943, 61.0230, 61.0402 to 61.0415.
N. Dak. Rev. Code 1943, 61.1402.
'" N. Dak. Rev. Code 1943, 61.1404.
'N. Dak. Rev. Code 1943, 61.0418 to 61.0421.
"* Sturr v. Beck, 133 U. S. 541, 547, 551 (1890).
STerr. Dak. Civ. Code, 255.
"N. Dak. Rev. Code 1943, 47.0113.

certain designated purposes,2 referred to above.20 The supreme
court has adhered to the riparian doctrine in the very few cases in which
riparian rights have been considered."2
The statute relating to the ownership of water above noted, originally
enacted by the Territory of Dakota and still a part of the State law,22*
states a rule of unqualified ownership of ground water not forming a
definite stream-that is, percolating water--on the part of the owner
of overlying land; and it accords only a right of use of a definite under-
ground stream to the landowner, no greater and no less than in case of
a surface stream. Apparently no decisions of the supreme court have
been rendered with respect to ground waters.
The water appropriation statute provides procedure for the adjudica-
tion of water rights in actions brought by the Attorney General upon
completion of hydrographic surveys by the State Engineer, and for
the making of such surveys for use in complete stream adjudications
initiated by private parties." The State Engineer is appointed by the
Water Conservation Commission and is the Commission's secretary
and chief engineer."D He is authorized to make rules and regulations
for the discharge of his functions; but his rules and regulations relating
to applications to appropriate water, inspection of works, issuance of
licenses, and determination of rights are subject to modification if re-
quired by a vote of the Commission on appeal from a decision of the
State Engineer.22 The Commission is vested with full control over
all unappropriated public waters to the extent necessary to discharge
its functions,2 and is granted certain powers with respect to the control
of the flow of streams."

A statute, copied from a very early enactment of the Territory of
Dakota,t and retained by the legislatures of both North Dakota and
South Dakota, declares that the owner of land owns water standing

t See supra, n. 211, p. 748.
Bigelow v. Draper, 6 N. Dak. 152, 162-163,69 N. W. 570 (1896).
See supra, n. 217, p. 748, and n. 218, p. 748.
m See McDonough v. Russell-Miller Mill. Co., 38 N. Dak. 465, 471-473, 165
N. W. 504 (1917); Johnson v. Armour & Co., 69 N. Dak. 769, 776-779, 291
N. W. 113 (1940). Reference was made in both cases to the statute according to
the owner of land the right to use the water of a definite stream so long as it
remains on his land, now N. Dak. Rev. Code 1943, 47.0113, footnote 9 above.
iN. Dak. Rev. Code 1943, 61.0315 to 61.0319.
"N. Dak. Rev. Code 1943, 61.0301.
N. Dak. Rev. Code 1943, i 61.0313 and 61.0314.
m N. Dak. Rev. Code 1943, f 61.0226 and 61.0229.
"N. Dak. Rev. Code 1943, 61.0214, amended by Laws 1944-1945, ch.
328, and 61.0235 to 61.0245.
Terr. Dak. Civ. Code, 255.


on or flowing over or under the surface, but not forming a definite
stream,t and that he may use the water of a definite natural surface or
underground stream so long as it remains on his land but may not
prevent its natural flow.m2
Acquisition of the rightto make beneficial, use of any water is in-
itiated by making application to the Oklahoma Planning and Resources
Board for a permit to appropriate the water. Oh completion of the
works a certificate of completion of construction is issued, and on ap-
plication of the water to beneficial use, a license to appropriate the
water.2"0 The Oklahoma Supreme Court has placed a construction
upon the procedure for acquiring appropriative rights for irrigation
purposes that is unique in Western water law; viz., that a ydrographic
survey and court adjudication of existing water rights are conditions
prcedent to the granting by the State administrator of a valid permit
to appropriate water for irrigation.2'" The court in 1943 referred to
the fact that in Owens v. Snider "2 a court decree determining water
rights for irrigation under the general water appropriation act had been
held to be a condition precedent totheissuance of a permit to irrigate;
but decided that a determination of: water rights had not been made
a preliminary requirement to the issuance by the Conservation Com-
mission (predecessor of the Planning add Resources Board) of a permit
to a power corporation to develop water power.23 Forfeiture of the
appropriative right results from failure to use the water for a period
of two years; 2" and on abandonment of the use of water appurtenant
to land, the water becomes public water subject to appropriation.t2
The riparian doctrine has been referred to in various cases decided
by the Oklahoma Supreme Court, chiefly in controversies relating to
stream pollution or interference with the natural flow of streams for
purposes other than irrigation.28 The court, in a controversy over
the use of a pond, formed in a former stream channel, for ardh hatchery
and fishing resort, quoted the statuterelating to the usely the land-

Okla. Stats. 1941, Tit. 60, 60.
Okla. Stats. 1941, Tit. 82, 21 to 59.
tGay v. ,Hicks, 0ka. 675, 684-685 124 Pac. 1077 (1912); Owens v.
Snider, 52 Okla. 772, 775, 778-781, 153 Pac 833 (1915).
M See supra, a. 231.
Grand Hydro v. Grand River Dam Authority, 192 Okla. 693, 6954696,
139 Pac. (2d) 798 (1943).
Okla. Stats. 1941, Tit. 82, 32.
m Okla. Stats. 1941,.Tit 82, 34.
"" See Markwardt v. Gutlrie, 18 Okla. 32, 37, 54,90 Pac. 26 (1907); Chicago,
R. I. & P. Ry. v. Groves, 20 Okla. 101, 111, 93 Pac. 755 (1908) Zalaback v.
Kingfisher, 59 Okla. 222, 223, 158 Pac. 926 (1916); Burket v. Bayes, 78 Okla.
8, 10, 187 Pac. 214 (1918, 1920); Enid v. Brooks, 132 Okla. 60, 61-63, 269 Pac.
241 (1928); Oklahoma City v. Tytenicz, 171 Okla., 519, 520-521, 43 Pac. (2d)
747 (1935); Martin v. British American Oil Producing Co., 17 kla. 193, 195,
102 Pac. (2d) 124 (1940). I

owner of a definite stream 238 and stated that the stream in litigation
was a definite stream; that the parties had reciprocal rights; and that
each was entitled to a reasonable use of the stream." In 1946 a
controversy between riparian owners was decided, the lower owners
having brought suit to enjoin the upper owners and their lessees from
obstructing the stream and taking water to nonriparian lands for drill-
ing operations.29 The court referred to the statute above noted, and
to previous'decisions; stated that in Oklahoma "the common law defi-
nition of riparian rights substantially obtains"; and held that as between
riparian owners each was limited to a reasonable use with regard to the
rights and necessities of the others, and that to be entitled to relief,
lower owners must show that they have suffered injury to their riparian
rights. The doctrine of appropriation likewise has been recognized
by the Oklahoma Supreme Court as applicable to conditions in Okla-
homa,240 and the extant appropriation statute has been construed by
that court.24 However, apparently no decisions have been rendered
by the supreme court in controversies involving conflicts between claim-
ants of riparian rights on the one hand and of appropriative rights on
the other to the use of the same water supply.
A statute to be cited as the "Oklahoma Ground Water Law," pro-
viding for State control over rights to the use of ground water other
than ground water flowing in underground streams with ascertainable
beds and banks, was enacted in 1949.22 Previously, the statute de-
claring the ownership of ground water not forming a definite stream-
that is, percolating water-to be vested in the owner of overlying land 2-
had been construed by the supreme court as not intended to convey
such an absolute ownership as to result in unreasonable injury to orie's
neighbor, who has a similar ownership.2* On the contrary, according-
to the court, each landowner must be restricted to a reasonable exercise
of his own rights in view of the similar rights of others, and exhaustion
of a neighbor's ground-water supply for transport to distant lands does.
not conform to this requirement of reasonableness. The 1949 law
provides for priority of claims for the appropriation of ground water
according to priority of right, but exempts uses for domestic purposes.

"' See supra, n. 229, p. 750.
LmBroady v. Furray, 163 Okla. 204,205,21 Pac. (2d) 770 (1933).
m Smith v. Stanolind Oil & Gas Co., 197 Okla. 499, 501-502, 172 Pac. (2d)
1002 (1946).
Gates v. Settlers' Mill., Canal & Res. Co., 19 Okla. 83, 89-91, 91 Pac.
856 (1907).
Gay v. Hicks, 33 Okla. 675, 682-685, 124 Pac. 1077 (1912); Owens v.
Snider, 52 Okla. 772, 775, 778-781, 153 Pac. 833 (1915).
'.Okla. Laws 1949, Tit. 82, Chap. 11, p. 641; Stats., 1949 Cum. Supp., Tit-
82, 1001 to 1019.
See supra, n. 229, p. 750.
"'Canada.v. Shawnee, 179 Okla. 53, 54-57, 64 Pac. (2d) 694 (1936).

and the watering of stock that are made without waste. Claims of
rights in basins, the waters of which: have not been adjudicated, are re-
corded by means of applications filed with the Oklahoma Planning and
Resources Board, Provision is made for adjudications by the courts
of rights to the use of waters of ground-water basins upon completion
of surveys by the Board, and for decrees of adjudication containing
findings of safe yield and annual recharge. After an adjudication, the
remaining ground water subject to appropriation may be taken only
by license issued by the Board upon application therefore. The Board
is prohibited from issuing a permit where the result would be depletion
of the ground-water supply in excess of the average annual rate of
recharge; and likewise may not issue a permit to an applicant who
does not own land overlying the ground-water basin or hold a valid
lease from a landowner permitting withdrawal of water from the basin.
Administration of rights of priority is vested in the Board.
The general water appropriation statute provides for determinations
of water rights, in suits brought by the Attorney General upon com-
pletion of hydrographic surveys by the Board, as well as in suits initiated
by private parties.w2 The Board is given supervision over the appor-
tionment of water according to licenses and decreed rights, with power
to create water districts and appoint water masters.2"

All water from all sources of water supply is declared by statute
to belong to the public and, subject to existing rights, to be available
for appropriation for beneficial use under the exclusive procedure pro-
vided in the statute."7 However, certain waters of the State have been
withdrawn from appropriation in a series of enactments, chiefly to
preserve the natural flow for scenic and recreational purposes and the
protection of fishlife. It is, provided by statute that the laws relating
to priorities of right to utilize the waters of running streams shall
apply likewise to waste, spring, or seepage waters, but that the person
on whose lands the seepage or spring waters first arise shall have the
right to the use of such waters.28 The preference thus accorded to
the landowner has been upheld by the Oregon Supreme Court in cases
in which the flow from the spring did not pass from the land on which
the spring was located, or did not form a natural stream.24 However,

Okla. Stats. 1941, Tit. 82, 11 to 14, 29.
SOkla. Stats. 1941, Tit. 82, 57 to 83.
"' Oreg. Comp. Laws Ann., 116-401 and 116-402.
Oreg. Comp. Laws Ann., 116-701.
'Morrison v. Officer, 48 Oreg. 569, 570, 87 Pac. 896 (1906); David v.
Brokaw, 121 Oreg. 591, 601, 256 Pac. 186 (1927); Henriciv. Paulson, 134 Oreg.
222, 224-225, 293 Pac. 424 (1930); Klamath Development Co. v. Lewis, 136

if nthe flow from the spring constitutes or discharges into a natural
stream, it is subject to the law of watercourses.200 : :
The appropriative right for most uses of water is initiated by making
application to the State Engineer for a permit to appropriate the water;
and, upon perfectionw of the appropriation, a certificate is issued.s2
Appiopriations of water for the generation of electricity, however, are
governed by the hydroelectric act, except in the case of developments by
the United:States:or by cities, towns, municipal corporations, or utility
districts.w; The needs of municipalities for water are.provided for by
declaring that ;applications for municipal water supplies may be ap-
pdoved by the State!Engineer to the exclusion of all subsequent appro-
priationsifthe! exigencies of the case sq demanda;2" that water may be
appropriate for such future reasonable and usual municipal purposes
as.nayibea~easonably anticipated; and that the State Engineer shall
reject, orgrant subject to municipal uses, all applications where in:his
judgment the appropriation of the waters applied for would impair a
municipal Water supply."u An early statute provides that when the
watts, bf a natural stream are inadequate for all users, first preference
shall be given to domestic purposes, subject to such limitations as may
be prescribed by law, and that agricultural purposes shall have prefer-
ence ovei manufacturing purposes. 'Apparently this statute has not
benr interpreted by the supremecourt; but that court in referring to
the ~atutp providing that applications for the appropriation of mu-
nic water supplies may be approved to the exclusion of subsequent
appropriatibru,2" noted that no precedence was'thereby given to a
mniixtieial corporation as such, as agaihst prior claimants, and that
ptiprties,of appropriation consitute a species of property wh; cannot
be taken fro~ the holder without compensation." If the owner of a
perfected and developed water right'fails to use the:appropriated water
for'*peiriod of five successive years, abandonment of the'water right is
Orlg.:445, 450, 299 Pac. 705 (1931); Skinner v. Silver, 158 Oreg.;81,96-98, 75
Pac. (2d) 21 (1938) ; Messinger v. Woodcock, 159 Oreg. 435, 443-444, 80 Pac.
(2df 895 (1938).
*"dro v. Schafer, 24 Oreg. 239; 244, 33 ,ac. 678 (1893) ; Low v. Rizor, 25
Oreg. 551, 559,37 Pac. 82 (1894); Boyce v. Cupper, 37 Oreg. 256, 261, 61 Pac.
642 (1900); Brosnan 'v. arris, 39 Oreg. 148, 150-151, 65 Pac. 867 (1901);
prison v. Officer, 48 Oreg. 569, 570, 87 Pac. 896 (1906); Hildelbrandt v.
Monktgomery, 113 Oreg. 687, 690, 693-694, 234 Pac. 267 (1925);' Minton v.
Coast Property Corp., 151 Oreg. 208, 217, 46 Pa. (2d) 1029 (1935X.
SOieg.'Xomp. Laws Ann., 116-419 to 116427.
m Oreg. Comp. Laws Ann., 19-101 to 119-302.
SOreg. Gonip. Laws Arn., t 116-421.
Oreg. Cdmp. Laws Aiii~., 116-437.
G Oreg. Comp. Laws Ann., 116-1021.
"*Oreg. Comp. Laws Ann.,, 16-601.;
SSee supra, n. 253.
"'n re Schollmeyer, 69 Oreg. 210, 215, 138 Pac. 211 (1914):

conclusively presumed; but the water rights of cities and towns for all
reasonable and usual municipal purposes are exempted from this
As a result of legislation and judicial decisions, Oregon has become
essentially an appropriation-doctrine State notwithstanding cases' in
which the riparian doctrine, to some extent at least, was considered
to be a part of the State water law. In various decisions up to and
including the first decade of the present century, the sUpreme court
recognized that riparian owners had certain rights to the use of water,2e
but also recognized the applicability of the appropriation doctrine to
rights acquired on the public domain pursuant to authority containedfin
acts of Congress, as against riparian claims incident to'lands subse-
quently passing to private possession,~' and the resulting modification
of the common-law d6ctrine.22 The incompatibility of the r:iparian
and appropriation doctrines was acknowledged, and there became es-
tablished the principle that a settler upon public land contiguous to
a stream could elect to make a prior appropriation of the ;water;ior
to insist upon his riparian right, but, that he could not doboth.<,
In the leading case of Hough v. Porter,2 the supreme court held that

'"Oreg. Comp. Laws Ann., 116-437. Abandonment and forfeiture of
water rights acquiredd under laws enacted prior to the "water code" of 1909 are
covered in C6mp. Laws Ann., $ 108-309, 116-411, and 116-417.
Tajlor v. Welh,'6 Oreg. 198, 200 (1876); Coffman v. Robbins, 8 Oreg.
278, 282 (1880); Shively v.', ume, 10'Oreg. 76, 77 (1881); Shook v. Cbtohan,
12 Oreg. 239, 244, 6 Pac. 503 (1885); Weiss v. Oregon Iron & Steedic., t
Oreg. 496, 498-502, 11 Pac. 255 (1886); Low v. Schafer, 24 Oreg. 23,9, 45rr
246, 33 Pac. 678 (1893); Jones v. Conn, 39 Oreg. 30, 34, 36-37, 39-41,44-46,
64 Pac. 855, 65 Pac. 1068 (1901); Cox v. Bernard, 39 Oreg. 53, 61, 64 Pac.
860 (1901); Bauers v. Bull, 46 Oreg. 60, 66, 78 Pac. 757 (1904); Brown v.
Gold CoinjMin. Co., 48Oreg. 277, 286,86 Pac. 361 (1906).
Lewis v. McClure, 8 Oreg. 273, 274-275 (1880); Tolman v. Casey, 15 Qreg.
83, 88, 13 Pac. 669 (1887); Curtis v. LaGrande Water Co., 20 Oreg. 34,42,
23 Pac. 808 (1890); Speake v, Hamilton, 21 Oreg. 3, 6, 8, 26 Pac. 855 (189) ;
Simmons v. Winters, 21 Oreg. 35, 42, 27 Pac. 7 (1891); Brown v. Baker, 39
Oreg. 66, 68-69, 65 Pac. 799, 66 Pac. 193 (1901); Morgan v. Shaw, 47 Oreg.
333, 337, 83 Pac. 534 (1906); Porter v. Pettengill, 57 Oreg. 247, 249, 110 Pac.
393 (1910).
Carson v. Gentner, 33 Oreg. 512,515-516,52 Pac. 506 (1898). ,-.
"North Powder Mill. Co. v. Coughanour, 34 Oreg. 9, 22, 54 Pac. 223
(1898); Brown v. Baker, 39 Oreg. 66, 70, 65 Pac. 799, 66 Pac. 193 (1901);
Davis v. Chamberlain, 51 Oreg. 304, 311, 98 Pac. 154 (1908). See Low v.
Schafer, 24 Oreg. 239, 245-246, 33 Pac. 678 (1893). See also footnote 269,
Hough v. Porter, 51 Oreg. 318, 383-406, 95, Pac. 732 (1908), 98 Pac. 1083
(1909), 102 Pac. 728 (1909). Approved and applied in Hedges v. Riddle, 63
Oreg. 257, 259-260, 127 Pac. 548 (1912). Riparian rights for lands acquired
from the Government prior to the enactment of the Desert Land Act were held
to include irrigation purposes in Norris v. Eastern Oregon Land Co., 112 Oreg.
106, 109-112, 227 Pac. 1111 (1924).

the effect of the Desert Land Act of 1877 ":was to abrogate the modi-
fied common-law doctrine of riparian rights, except for domestic use
and the watering of stock essential to the sustenance of riparian land-
owners, so far as public lands entered after the date of that act were
concerned. The water appropriation statute of 1909 contained pro-
visions defining and limiting vested riparian rights to the extent of
the actual application of water to beneficial. use prior to the passage
of the act, or within a reasonable time thereafter by means of works
then under construction, all such rights to be adjudicated under the
statutory procedure therein provided; 2m and the supreme court upheld
the validity of this legislative definition of vested riparian rights, stating
that it was within the province of the legislature, by that act, to define
a vested riparian right or to establish a rule governing the conditions
under which it should be deemed to be created.27 In the develop-
ment of the principle that one cannot claim both riparian and ap-
propriative rights for the same use of water,28 the court has held re-
peatedly that the election of one of these two claims is in substance
a waiver of the other, and that to claim a right to use a specified
quantity of water from a specified date, to the exclusion of use by
others, is to waive one's riparian right for the purpose of the pro-
ceeding in which the claim is made and to assume the character of
an appropriator.n No right can be adjudicated under the statutory
procedure except for the use of a specific quantity of water and with
a fixed date of priority-inother words, on an appropriative basis.270
The measure of the vested right of a riparian landowner is beneficial
19 Stat. L. 377 (March 3, 1877).
mOreg. Laws 1909, ch. 216, 70; Comp. Laws Ann., 116-403.
"ln re Hood River, 114 Oreg. 112, 174-182, 227 Pac. 1065 (1924). The
Federal Circuit Court of Appeals, Ninth Circuit, concluded that the Oregon
riparian owner's right to the natural flow of a stream, substantially undiminished,
Shad been validly abrogated by the Oregon statute of 1909 as construed in the
Hood River case: California-Oregon Power Co. v. Beaver Portland Cement Co.,
73 Fed. (2d) 555, 567-569 (C. C. A. 9th, 1934). The United States Supreme
Court affirmed the judgment of the Circuit Court of Appeals, but passed over
this particular question inasmuch as the ground upon which the Supreme Court's
affirmance was based made the consideration of this question unnecessary: Cali-
fornia Oregon Power Co. v. Beaver Portland Cement Co., 295 U. S. 142, 153, 165
"'See supra, n. 263, p. 754.
"Caviness v. LaGrande Irr. Co., 60 Oreg. 410, 421-423, 119 Pac. 731
(1911); Little Walla Walla Irr. Union v. Finis Irr. Co., 62 Oreg. 348, 358, 124
Pac. 666, 125 Pac. 270 (1912); Bowen v.Spailding, 63 Oreg. 392, 395, 128
Pac, 37 (1912); In re Schollmeyer, 69 Or'eg. 210, 212, 138 Pac. 211 (1914);
In re Sucker Creek, 83 Oreg. 228, 234-237, 163 Pac. 430 (1917); Norwood v.
Eastern OregopnLand Co., 112 Oreg. 106, 111-112, 227 Pac. 1111 (1924);
In-re Deschutes River and Tributaries, 134 Oreg. 623, 692, 703-706, 286 Pac.
563, 294 Pac. 1049 (1930).
"'In re Deschutes River addi Tributaries, 134 Oreg. 623, 704, 705, 286 Pac.
563, 294 Pac. 1049 (1930).

use of the water,71, which right, to have an enforceable, priority, must
be adjudicated with the elements of an appropriative right.: ,The net
result of the Oregon legislation and court decisions has been a virtual
abrogation of, the substance of the riparian doctrine except as to
certain vested rights chiefly for domestic and stockwatering purposes.
That is to say, the raparian doctrine in Oregon appears to be little
more than a legal fiction.
The Oregon Supreme Court has held that water flowing under-
ground in a known and defined channel constitutes a watercourse arid
is governed by the laws applicable to surface streams, not by the laws
applicable to percolating waters.27 The few statements of the court
with reference to the law of percolating waters are to the effect that
such waters belong to the owner of the overlying land.278
A statute applicable only to the counties lying east of the summit
of the Cascade Mountains provides that subject to existing rights,
waters found in underground streams, channels, artesian basins, reser-
voirs, or lakes, the boundaries of which may reasonably be ascertained,
belong to the public and may be appropriated for any purpose other
than for domestic and culinary use:, stock, or the watering of lawns and
gardens not exceeding one-half acre in area.274 Appropriations are
made under the procedure governing appropriations from surface
streams, with certain modifications pertinent to the differences in
character of surface and grourid-water supplies. :The issuance of per-
mits is restricted to the safe yield of the ground-water basin, contingent
upon a reasonable or feasible pumping lift in case of'pumping develop-
ments, or a reasonable or feasible reduction of pressure in case of artesian
The statutory procedure for the adjudication of water rights, pro-
vides for detehninationshby the State Engineer, upon petition of 'one ok
more water users, the findings of fact and defriftibns of rights'being
filed with the circuit court, which hears the matter under proceedings
similar to; tBose of a suit in equity and upon final hearing enters a
decree-ofi adjudication affirming or modifying the order of the State
Engineer.27" This method of statutory adjudieatibon, whiehkhas been
copied in several, other States, is a variation ftim 'the previously de-
veloped Wyoming system; that is, under the Oregon system the State

"Concurring opinion Justice Coshow: In re Hood River, 114 Oreg 112,
207, 227 Pac. 1065 (1924)., ., *, : : I
STaylor v. Welch, 6 Oreg. 198F200 (1876); Hayes v. Adams,.109 Oreg. 51,
58, 218 Pac. 933 (1923); Bult v. Siegrist, 169 Oreg. 180, 186, 126 Pac. (2d)
832 (1942).
Taylbr v. Welch, 6 Oreg. 198, 200-201 (1876); Boyce v.: auper, 37Oreg.
256, 260-261, ,61 Pac. 642 (1900); Hayes v. Adams, 109 Oreg. 51, :57, 218
Pac. 933 (1923).
Oregi/Gbrip:Laws Ann., $:116-443 to11'6-453.
Oreg. Comp. Laws Ann., 116-801 to 116-823.

Engineer's determination is not final, but must be filed in court as the
initiation of a judicial action and is subject either to affirmance or to
alteration by the court as the result of hearings upon exceptions taken
by interested parties, whereas the Wyoming system contemplates ad-
judications by the State Board of Control which are final unless ap-
pealed to the courts. The Oregon procedure has been upheld by the
United States Supreme Court as not violative of the due process clause
of the Federal constitution.2~7 The statute also provides for com-
plete determinations in suits brought by private parties,2" for trans-
ference of such suits to the State Engineer at the court's discretion,27
and for hydrographic surveys by the State Engineer in suits in which
the State is a party.27
The State Engineer is charged with th6 duty of administering the
water laws of the State, and of dividing the State into water districts as
the necessity therefore arises. He may appoint a watermaster for each
district who, under the general control of the State Engineer, distributes
water according to the several rights thereto.280

South Dakota
The water appropriation statute declares that subject to vested
rights and with certain other exceptions, all waters belong to the public
and, except navigable waters, are open to appropriation for beneficial
use.2' Subject to the laws relating to artesian wells and water, the
owner of land owns water standing on or flowing over or under the
surface but not forming a definite stream, and he may use the water of a
definite natural surface or subterranean stream while on his land but may
not interfere with the flow of the stream or its source other than under
the laws relating to the appropriation of water; this law in its original
form having been derived from a statute of the Territory of Dakota.28
Beneficial use means the use of water for domestic, stock-watering, irri-
gation, mining, milling, power, fish culture, fire protection, and public
recreational purposes.28 Appropriations of water for power purposes
in excess of 25 horsepower may not be made for periods exceeding 50

'"Pacific Live Stock Co. v. Lewis, 241 U. S. 440, 451-455 (1916).
"7 Oreg, Comp. Laws Ann., 116-412.
Oreg. Comp. Laws Ann., 116-801.
Oreg. Comp. Laws Ann., 116-822.
Oreg. Comp. Laws Ann., 116-206 to 116-308.
m S. Dak. Code 1939, 61.0101.
2S. Dak. ,Code 1939, 61.0101. This declaration of. ownership and/or
rights of use af'water by the landowner, without the qualifications relating to
artesian wells and water and laws regarding the appropriation of water, was
adopted b'y the State of South Dakota from a statute of the Trritory of Dakota:
Terr; Dak. C(y. Code, 255.
S. Dak.? Code 1939, 61.0102, amended by Laws 1939, ch. 289.

years, but the appropriator and his assigns have the prior right of
Appropriations are initiated by making application to the State
Engineer for permits. A certificate of construction is issued on com-
pletion of construction, and a license to appropriate the water upon its
application to beneficial use.2 Failure to use appropriated water
beneficially for three years results in forfeiture of the right.286 Like-
wise, water appurtenant to land reverts to the public upon abandon-
ment of the use of the water on the land.ss2
Holders of agricultural lands may obtain rights, for irrigation or
livestock purposes, to the flood waters in any "dry draw" or watercourse
not having a flow of at least 20 miner's inches during the greater part
of the year. The prospective user files a location certificate in the
county records, posts a copy, and sends a copy to the State Engineer.
He may obtain from the State Engineer a certificate of right upon
petition; but these dry-draw rights are not subject to the rules and
regulations of the State Engineer or under his jurisdiction.288
Riparian rights in South Dakota have been recognized in a number
of court decisions. The United States Supreme Court, in Sturr v.
Beck,289 recognized the existence of such rights in the Territory of
Dakota, and cited the statutory declaration by the Territory that the
landowner may use the water of a definite stream while it remains on
his land but may not prevent its natural flow.289 The State statute
containing the same declaration, derived from the Territorial statute,
was stated by the South Dakota Supreme Court to have been a concise
statement of the common-law doctrine applicable to the rights of
riparian owners,291 and "should be regarded as merely declaratory of the
common law as understood by the commissioners when their report
was prepared." 2 Riparian rights are incident to and part of the
2" S. Dak. Code 1939, 61.0152.
S. Dak. Code-1939, 61.0122 to 61.0132.
S. Dak. Code 1939, 61.0139.
SS. Dak. Code 1939, 61.0141.
S. Dak. Code 1939, 61.0133; Laws 1947, ch. 420.
SSturr v. Beck, 133 U. S. 541, 547, 551 (1890).
See supra, n. 282, p. 757.
Lone Tree Ditch Co. v. Cyclone Ditch Co., 15 S. Dak. 519, 525-526, 91
N. W. 352 (1902).
"Redwater Land & Canal Co. v. Reed, 26 S. Dak. 466, 474, 128 N. W.
702 (1910). "Commissioners" refers to the Code commissioners of New York.
The South Dakota court stated that section 278 of the Revised Civil Code
of South Dakota (which was taken from section 255 of the Civil Code of the
Territory of Dakota) was the same as section 256 of the New York Civil Code
as proposed by the Code commissioners of that State. "There is no suggestion
in the report of the commissioners of an intention to change the common law
respecting riparian rights. Therefore section 278 of our Civil'Code should be
regarded as merely declaratory of the common law as understood by the com-
missioners when their report was prepared."

land itself; 29 where vested, they could not be affected by the pro-
vision of the water appropriation act of 1907 dedicating all waters
within the State to the public, nor by the provision for forfeiture of a
right when not exercised for three years.". Various features of the
riparian doctrine and its operation in the State were involved in several
decisions of the supreme court rendered in 1910 and 1911; "" and a
decision in 1932 dealt with the rights of a city resulting from ownership
of-a tract of riparian land.2 :
The South Dakota Supreme Court ruled in 1922 that public lands
entered after the enactment of the Desert Land Act in 1877 27 were
divested of all riparian rights except for domestic purposes,298 but
rendered a decision to the contrary in 1940.299 The court stated in
this later decision that it had erred previously in holding that Congress,
by the Desert Land Act, had intended to set up "appropriation" as
the governing rule under which rights in surplus water on the public
domain were to be acquired; that inasmuch as the South Dakota de-
cisions rendered prior to 1922 had held that riparian rights could be
acquired by means of settlement on riparian land and appropriative
rights by proceeding under the statute, the rights of a riparian owner
must be determined by the law thus established.
Ground waters flowing in well-defined and known channels, the
course of which can be distinctly traced, are governed by the same
rules of law that govern streams flowing upon the surface; but in
order that the riparian owner or appropriator may invoke these rules,
the flows must constitute regular and constant streams, otherwise the
presumption will be that they have their sources in ordinary percolations
through the soil.800
Ground waters not forming a definite stream were declared by the
early Territorial law to belong to the owner of overlying land, without
qualification.s01 This law of unqualified ownership, carried over into
SStenger v. Tharp, 17 S. Dak. 13, 23-24,94 N. W. 402 (1903).
St. Germain Irrigation Ditch Co. v. Hawthorne Ditch Co., 32 S. Dak. 260,
266-267, 268, 143 N. W. 124 (1913). The statute referred to is S. Dak. Laws
1907, ch. 180, which with various amendments is a part of the extant code:
S. Dak. Code 1939, Title61, ch. 61.01.
SLone Tree Ditch Co. v. Cyclone Ditch Co., 26 S. Dak. 307, 310-313, 128
N. W. 596 (1910); Redwater Land & Canal Co. v. Reed, 26 S. Dak. 466,
475-477, 481, 487-488, 489-490, 128 N. W. 702 (1910); Redwater Land &
Canal Co. v. Jones, 27 S. Dak. 194, 202-204, 205-206, 130 N. W. 85 (1911).
Sayles v. Mitchell, 60 S. Dak. 592, 594-595, 245 N. W. 390 (1932).
'19Stat. L. 377 (March 3, 1877).
SCook v. Euaris, 45 S. Dak. 31, 40, 185 N. W. 262 (1921), 45 S. Dak. 43,
186 N. W. 571 (1922). See also Haaser v. Englebrecht, 45 S. Dak. 143, 146-
147, 186 N. W. 572 (1922).
SPlatt v. Rapid City,67 S. Dak. 245, 248-250, 291 N. W. 600 (1940).
S'Deadwood Central R. R. v. Barker, 14 S. Dak. 558, 565-566, 86 N. W.
619 (1901-).
m Terr. Dak. Civ. Code, 255.

the statutes of South Dakota, was cited by the State supreme court as
authority for the principle that subterranean percolating water in South
Dakota is a part of the realty.802 The court stated in 1932 that in view
of the rule announced in previous decisions (cited in. footnote 302),
which had been based upon the statute, "there can be no serious con-
tention but :that the owner of the soil is the absolute owner of per-
colating subterranean water." 808 The right to install artesian wells
on one's own land, within certain limitations, is accorded by statute.8"
An act providing for the regulation of the use of artesian waters and
taxation"of artesian wells, and imposing certain duties upon the State
Engineer with respect thereto, was passed in 1919 and extensively re-
vised in 1939, the sections relating to taxation having been repealed in
1941.30* According to the supreme court, this law of 1919 did not
change the statutory and judicial rule of ownership of percolating water
by the owner of the overlying land; it "attempts to do nothing more
than establish rules and regulations concerning artesian wells," leaving
in effect the previous legislation (relating to unqualified ownership of
ground water not forming a definite stream) except as to artesian
water.3" As a result, the rule of absolute ownership of percolating
waters still prevails; but artesian wells are subjected by statute to reason-
able use, primarily to prevent waste of the water;s07
Participation of the State Engineer in adjudications of water rights
was made largely inoperative as the result of a supreme court decision
in 1913 to the effect that a riparian proprietor or appropriator exer-
cising a lawful right could not be required, without his consent, to
bear any portion of the expense of a hydrographic survey in connec-
tion with a statutory adjudication.808 Amendments made in connec-
tion with the 1939 codification provide that when an action for the
determination of water rights has been begun, the court shall request
~Metcalf v. Nelson, 8 S. Dak. 87, 89, 65 N. W. 911 (1895); Deadwood
Central R. R. v: Barker, 14 S. Dak, 558, 565, 570-571, 86 N. W. 619 (1901).
Madison v. Rapid City, 61 S. Dak. 83,87, 246 N. W. 283 (1932).
S. Dak. Code 1939, 61,0401 to 61.0406.
"S.:Dak. Laws 191, ch. 100; Code 1939,, 61.0407 to.61.0415. S. Dak.
Laws 1941, ch. 369, repealed 61.0408, 61.0409, 61.0410, 61.0411, 610412,
and 61.0413 of the Code of 1939. ,.
Madison v. Rapid City, 61 S. Dak. 83, 87-48, 246 N. W. 283 (1932). The
phrase "Subject to the provisions ~pf this code relating to artesian wells and
water" was placed at the head of the section declaring ownership of percolating
water in the 1919 codification: S. Dak. Rev'Code 1919, 348,
SThe supreme court stated by way of dictum in.1913: "The private owner
of real estate, who siaks an artesian well on his premises, is the, absolute owner
of the water flowing therefrom and may control the whole thereof as hr may see
fit so long as he does no injury thereby to others; ." St. Germain
Irrigating Ditch Co. v. Hawthorse Ditch Co., 32 S. Dak. 260, 267, 143 N. W.
124 (1913).
St. Germain Irrigating Ditch Co. v. Hawthorne Ditch Co.,, 32. Dak.
260, 269, 143 N. W. 124 (1913).

the State Engineer to make a complete hydrographic survey, the State
Engineer to proceed therewith whenever funds ae made available from
legislative appropriations or other sources n: costs incurred on behalf
of the State to be charged against private parties without their express
consent.0' Water commissioners may be appointed for the distribu-
tion of water when the State Engineer or the court having jurisdiction
considers such appointment necessary.4Q A statute enacted in 1935
vests the full control of waters of definite streams, so far as they relate
to :'irrigation or other riparian rights,"'in the State Engineer, whose
duty it is to apportion the waters on request of 'fie or more landowners
having riparian rights.1 "
': ".' :.-+ Texas :

The constitution declares that the conservation and development of
al ,of the natural resources of the State, Specifically including waters,
republic rights and duties, and directs the legislature to pass all
sugh laws as wiay be appropriate thereto.8 ,
SThe statute relating; to the appropriation of water declares that the
'waters of the;ordinary flow and underflow and tides of every flowing
river or natural stream, of all lakes, bays or arms of the Gulf of Mexico,
and the storm, flood or rain waters ,of every river or natural stream,
canyon, ravine, depression or watershed" within the State are the prop-
erty of thetState, and that, the right to the use thereof may be acquired
by appropriation. in the manner provided ia: the statute; and it vests
in the State Board of Water:Engineers, the administration of the laws
enacted for the maximur.juicious employment of the State waters in
the public interest.' :WaterMay be appropriated for irrigation, min-
ing, millig, Tmanufacturing, development of power, construction and
operation of waterworks for cities: and towns, stock raising, public
paiks, game preserves, recreation and pleasure resorts, power and water
supply for industrial purposes and plants, and domestic use.81 The
Supreme Court of Texas has held that.this statute has no application
to diffused surface waters on lands granted prior to its enactment.,1
Appropriations of water are initiated by, application to the State Board
r Water Engineers for permits to appropriate the' water, the permitted
being required to begin construction work within a period designated
yly the statute subject to extension by:the Board and to prosecutethe
work diligently and continuously to completion.- .It is not necessary
S. Dak. Code 1939, 61.0119.
S. Dak. Code 1939, 61.0121.
S. Dak. Laws 1935, ch. 214; Code 1939,. 61.0104 aid 61.0105.
Tex. Const., art XVI, 59a.
m Tex. Vernon's Ann. Civ. Stats., arts. 7467 and.7472c.
Tex. Vernon's Ann. Civ. Stats., arts. 7470 and 7470a.
Turner v. Big Lake Oil Op;. 128 Tex. 155, 170, 96 S. W. (24) 221, (1936).
m Tex. Vernon's Ann. Civ. Stats., arts. 7492 to 7519.


to obtain a permit, howpek to construct on one's own property a dam
and reservoir to impound pot to exceed 50 acre-feet of water for domestic
and livestock purposes;. i. Apparently the statutory procedure is the
exclusive method of appropriating water in Texas.s8 Any appropria-
tion of water "wilfully abandoned" during any three successive years is
forfeited.3 19
The statutes contain several provisions relating to preferences in
the use of water. In the allotment and appropriation of water, pref-
erence is accorded in the following order: (1) Domestic and municipal
uses, including water, for domestic animals; (2) conversion of materials
into higher forms, including electric power other than hydroelectric;
(3) irrigation; (4) mining and mineral recovery; (5) hydroelectric
power; (6) navigation; (7) recreation and pleasure.320 Preference is
to be given also to applications contemplating the maximum utilization
of waters.321 Priority over all other applicants is accorded an intending
appropriator of water for storage by channel dams for irrigation, mining,
milling, manufacturing, development of power, water for cities and
towns, or stock raising.922 The owner of land through which water
flows has preference for a designated period over an applicant for a
permit to appropriate the water for mining purposes. Except on
any stream constituting the international boundary between the United
States and Mexico, appropriations for other than domestic or municipal
purposes are to be granted subject to the right of any municipality to
make further appropriation of such water thereafter without the neces-
sityof condemnation or payment of compensation.8*
The riparian doctrine has been recognized as a fundamental part
of the water law of Texas from the time of the earliest litigation on
the subject. That recognition has extended throughout the long series
of conflicts between claimants of riparian lands and claimants of rights
to use water on nonriparian lands under the irrigation statutes enacted
from time to time, but the appropriation doctrine likewise had been
recognized for many decades and has become of great importance in

"' Tex. Vernon's Ann. Civ,:Stats., art. 7500a.
The statute provides no alternative method, bqt on the contrary makes the
taking or appropriation ofwater, without first complying with all the provisions
of the act, a misdemeanor: Tex. Vernon's Ann. Civ. Stats., art. 7520. See
references to "statutory appropriation" in Biggs v. Miller, 147 S. W. 632, 636,
637 (Tex. Civ. App. 1912), decided prior to the enactment of the present law.
See also reference to the extant statute in Clark v. Briscoe Irr. Co., 200 S. W.
(2d) 674, 682 (Tex. Civ. App. 1947).
Tex. Vernon's Civ. Stats., art. 7544.
0 Tex. Vernon's Civ. Stats., art. 7471.
Tex. Vernon's Civ. Stats., art. 7472c.
= Tex. Vernon's Civ. Stats.,'art. 7545.
Tex. Vernon's Civ. Stats., art. 7467.
"' Tex. Vernon's Civ. Stats., arts. 7472 and 7472a.

the water law of the State. The.commbn-law doctrine was stated by
the supreme court as early as 1863i82 Contention over the question
as to whether irrigation was a "natural" useof the water, extending over
many years, was settled by holding that domestic uses had preference
over irrigation and manufacturing uses as among riparians, and that
subject to this preferred right of "natural" domestic use by other
riparian proprietors, each riparian owner was entitled to make a rea-
sonable use of thRe stream for irrigation purposes, all having equal
rights.M" The riparian right is a part and parcel of the land,827 but
is not inseparable from riparian land because it say be sold to or con-
demned by an appropriator;28 Vested rights of riparian proprietors
have been protected againstinfringement by claimants under legislative
acts.82 However, while the riparian owner who holds a valid riparian
right has first claim upon the quantity of water reasonably sufficient
for his needs, as against the excess the statutory appropriation is effec-
tive.a80 The supreme court in 1926, in Motl v. Boyd,831 held that
riparian waters are the waters of the ordinary flow and underflow of
thf stream, and that stream waters when they rise above the line of
highest ordinary flow are flood waters to which riparian rights do
Rhodes v. Whitehead, 27 Tex. 304, 309, 315, 84 Am. Dec. 631 (1863).
I" Watkins Land Co; v. Climents, 98 Tex. 578, 585-589, 86 S. W. 733 (1905).
Earlier Texas decisions wee.e discussed in the Watkins case. The reasonable
needs of riparian owners for domestic and stock-watering purposes have prefer-
ence over irrigation requirements of'other riparian owners: Martin v. Burr,
111 Tex. 57, 62, 228 S. W. 543 (1921). Apportionment of water among
riparian owners: Matagorda Canal Co. v. Markham Irr. Co., 154 S. W. 1176,
1180. (Tex. Civ. App. 1913). See also Biggs v. Miller, 147 S. W. 632, 636
(Tex. Civ. App. 1912).
"nParker v. El Paso County3 W. I.Dist No. 1, 116 Tex. 631, 642-643, 297
S.-Wi 737 (1927) ; Zavala County W. I. Dist. No. 3 v. Rogers, 145 S. W. (2d)
919, 923 (Tex. Civ. App. 1940). See Bigham Bros. v. Port Arthur Canal &
Dock Co., 91 S. W. 848, 853 (Tex. Civ. App. 1905).
"Matagorda Canal Co. v. Markham Irr. Co., 154 S. W. 1176, 1181 (Tex.
Civ. App. 1913).
.M Mud Creek Ir., Agricultural & Matufacturing Co. v. Vivian, 74 Tex. 170,
173, 11 S. W. 1078 (1889); Barrett v. Metcalfe, 12 Tex. Civ. App. 247, 252-253,
33 S. W. 758 (1896; writ of error refused 93 Tex. 679); Bigham Bros. v. Port
Arthur Canal & Dock Co., 100 Tex. 192, 201, 97 S. W. 686 (1906); Matagorda
Canal Co. v. Markham Irr. Co., 154 S. W. 1176, 1180 (Tex. Civ. App. 1913).
mBiggs.v. Lee, 147 S. W. 709; 710-711 (Tex. Civ. App. 1912; writ of error
dismissed, 150 S. W. xix). See also Santa Rosa Irr. Co. v. Pecos River Irr. Co.,
92 S. W. 1014, 1016 (Tex. Civ App. 1906; writ of error denied); McGhee
Irr. Ditch Co. v. Hudson, 85 Tex. 587, 589-592, 22 S. W. 398, 967 (1893);
Bigg v. Lefingwell, 62 Tex. Civ. App. 665, 667-668, 132 S. W. 902 (1910).
m Motl v. Boyd, 116 Tex. 82, 108, 111, 124, 286 S. W. 458 (1926). See also
Humphrlys-Mexia Co. v. Arsenaux, 116 Tex. 603, 610, 611, 297 S. W. 225
(1927); Parker v. El Paso County W. I. Dist. No. 1, 116 Tex. 631, 643, 297
S. W. 737 (1927); Texas Co. v. Burkett, 117 Tex. 16, 28, 296 S. W. 273 (1927);
Chicago, R. I. & Gulf Ry. V. Tarrant County W. C. & I. Dist. No. 1, 123 Tex.
432,449, 73 S. W. (2d) 55 (1934).

not attach but which, aremsubject to appropriation; that grantees of
public land granted prior to the enacirhent of the appropriation act of
1889 had become invested with riparian rights in the waters of streams
to which the lands were riparian; and 'that the appropriation acts of
1889 and following years down to and including the act of 1917 (the
extant statute):were valid:insofar as they authorized'the appropriation
of storm and flood waters and other waters without violation of existing
riparian rights. A section of the statute provides that an appropriator,
after three years' use of water under his statutory appropriation, shall
be deemed to have acquired a title by limitation against other claimants
including riparian owners; .'2 but the Texas Court of Civil. Appeals
has held that this section is not operative as against therights of
riparian Iandowners..- 'Various features'of the riparian doctrine have
been involved in other decisions of the Texas courts."8
The water appropriation statute includes the underflow of streams
among waters subject to appropriation,8 and, the supreme court.has
stated that riparian waters include the underflow of streams."8 The
few court decisions relating to percolating waters:have recognized the
principle that such waters are the propertyiof the owner of the overlying
'"Tex. Vernon's Ann. Civ Stats., art. 7592.
"Freeland v. Peltierr 44 8. W. (2d) 404, 407-408 (Tex. Civ. App. 1931).
Navigablbi waters: Barrett v. Mrtcalfs, 12'Tex..Civ. App. 247, 254i 33 S. W.
758 (1896); Bigham Bros. v. Port Arthur @anal& Dock Co., 91 S. W. 848,
852-853 (Tex. Civ. App. 1905); Mot v. Boyd, 116 Tex 82, 111, 286 S. W. 458
Spring source of watercourse: Fleming V. Dasis, 37 Tex. 173, !1944-195
(1872); Watkins Land Co. v. Clements, 98 Tex.. 578; 584-585, 86 S. W. 783
Limits of riparian land: Watkins Latnd Co. v 1 Clementss 98 Tex. 578, 585, 86
S. W. 733 (1905); Matagorda Canal Co. v. Markap m Irr. Co., 154 S. W. 1116,
1180 (Tex. Civ. App. 1913). :
Use of water by riparian owner on nonriparian land: Watkins Land Co. v.
Clements, 98 Tex. 578, 585; 86 S. W. 733 (1905):; Hsmphreys-Mexia Co. v.
Arsenaux, 116 Tex. 603, 610, 297 S. W. 225 (1927); Texas Co. v. Burkitt,
117 Tex. 16; 25-26, 296 S, W. 273 (41927.); Fort Quitman Land Co. v. Mier,
211 S. W. (2d) 340,344 (Tex. Civ. App. 1948). .
Storage of water: Stacy v. Delery, 57 Tex. Civ, App. 242, 248, 122 S. W. '00
(1909); Chicago, R. I. & Gulf Ry. v. Tarrant Couhty W. C. & I. Dist No. 1,
123Tex,432,448,73 S.,W. (2d).55 (1934). .' ,I
Appropriation of unappropriated water by riparian owner: Motl v. Boyd, 116
Tex. 82,124,286 S. W. 458 (1926).' ,
City as riparian proprietor: Grogan v. Brownwood, 214 S. W. 532, 536-538
(Tex. Civ. App. 1919).
Prescription by riparian owner against downstream riparian owners Martin v.
Burr, 111 Tex. 57,65-67,228 S. W. 543 (1921). ,
Loss of riparian right: Baker v. Brown, 55 Tex. 377, 381 (1881); Frislnd
v. Peltiers 44 S. W. (2d) 404,409 (Tex. Civ.App. 1931).
Tex. Vernon's Ann. Civ. Stats., art. 7467. '.
M Motl y. Boyd, 116 Tex. 82,111, 286 S. W. 458 (1926) ;Texas Co. v. Burket,
117 Tex. 16,28,296 S. W. 273 (1927).

land."7 The Texas Court of Civil Appeals in 1948 adhered to that
principle, but held that such ownership does not include the right to
intercept and waste percolating water to the detriment of an adjoining
landowner, waste of natural resources being against the public policy
of the State.m :
Two statutes providing for the regulation of water wells,: in order to
prevent waste of water and pollution of ground-water .supplies, under
the administration of the Board of Water Engineers, have been in
existence for a number of years." In 1949 the legislature added to the
water control and improvement district act a section 'authorizing the
creation of underground water conservation districts, their purpose
being the conservation, preservation, protection, and recharging and
the prevention of waste of ground water in underground reservoirs or
subdivisions thereof that have been designated by the Board of Water
Engineers.-0 The district may issue permits to drill wells, but no
landowner may be denied a permit to drill a well on his own land and
produce water therefrom, subject however to the district's rules and
regulations designed to'prevent waste. The statute specifically recog-
nizes the ownership and rights of the owner of land in ground water,
subject to the rules and regulations of the district; and it specifically
provides that the priorities and provisions of the law of surface,water
shall not apply to ground water.
The water appropriation act of 1917 authorized the Board of Water
Engineers, on petition of any water user, to make a determination of the
relative rights to the use of waters of a stream or other source of supply;
that appeals might be taken to the courts from the Board's order, the
order to be in force pending the determination of the appeal; and that
the Board might create water districts and appoint water commissioners
to distribute water to the users in accordance with its determinations."4
The uiipreme court in 1921, in Board of Water Engineers v. Mc-
Khight, 2.held that those portions of the statute relating to determina-
tions of rights were invalid as attempting to vest judicial powers in a
branch of the executive department of the State without the express
permission of the Constitution; an inquiry involving ~the most intricate

S"Houston & Texas, Central Ry. v. East, 98 Tex. 146, 149, 81 S, W. 279
(1904);,Texas Co. v. Giddings, 148 S. W. 1142, 1144 (Tex, Civ. App. 1912);
Farb v, Theis, 250 S. W. 290, 292 (Tex. Civ. App. 1923); Texas Co. v.
Burkett, 117 Tex. 16, 29, 296 S. W. 273 (1927).
SCantwell v. Zinser, 208 S. W. (2d) 577, 579 (Tex. Civ. App. 1948).
STex. Vernon's Ann. Civ. Stats., arts. '7600 to 7616; Vernon's Ann. Penal
Code, art. 848a.
"Tex. Laws 1949, ch. 306, amending Laws 1925, ch. 25, to include 3c
(Vernon's Ann. Civ. Stats., art. 7880-3c).
Tex. Laws 1917, ch. 88.
'Board of Water Engineers v. McKnight, 111 Tex. 82, 92-97, 229 S. W.
301 (1921).


questions of law and of' fact that are presented in a determination of
water rights, and resulting in the adjudication of property rights, being
strictly judicial. The provisions of the statute relating to the deter-
mination of rights and distribution of water were omitted from the
Revised Civil Statutes of 1925 and were thereby repealed."*
The Texas Supreme Court distinguished Board of Water Engineers
v, McKnight in a decision rendered in 1945 in a controversy involving
the constitutionality of statutes relating to the conservation of oil and
gas, in which counsel had contended that the statutes in question con-
ferred purely judicial duties upon an administrative body and, on the
authority:of the McKnight case, were therefore invalid.3" The su-
preme court pointed out that the water legislation declared invalid in
the McKnight case became effective June 19, 1917, whereas on August
21, 1917, there became effective a constitutional provision declaring
the conservation and development of all natural resources to be public
rights and duties and directing the legislature to pass all laws appro-
priate thereto.8" Therefore, the validity of the water legislation was
to be determined by the terms of the constitution in force when that
legislation was enacted, prior to the adoption of the constitutional pro-
vision of August 21, 1917. The oil and gas statutes, on the other hand,
were adopted after the constitutional provision in question became
effective, and hence must be considered in the light of that provision
and not under the provisions of the constitution as they existed when
the water legislation of June 19, 1917, was enacted. It was held, there-
fore, that the decision in the McKnight case did not control with respect
to the validity of the oil and gas statutes.


All waters in the State, whether above or under the ground, are
declared by statute to be the property of the public, subject to existing
rights of use.'" A right to the use of unappropriated water is initiated
by making an application to the State Engineer; and when the holder
of an approved application has shown to the satisfaction of the State
Engineer that he has perfected his appropriation, he receives a certificate
of appropriation which is prima facie evidence of the holder's right
to the use of the water as specified in the certificate, subject to prior
rights."47 It is provided that in times of scarcity of water, the use for

SVernon's Tex. Stats., 1936 Rev. Civ. Stats., Final Title, 2, p. 1569.
SCorzelius v. Harrell, 143 Tex. 509, 511-514, 186 S. W. (2d) 961 (1945).
Tex. Const., art. XVI, 59a.
Utah Code Ann., 1943. 100-1-1.
Utah Code Ann., 1943, 100-3-2 to 100-3-18. The statute contains
a provision to the effect that before an application to appropriate water from a
navigable lake or stream contemplating the removal of salts and other minerals
therefrom may be approved, the applicant must file with the State Engineer a

domestic purposes without unnecessary waste shall have preference
ovei all other uses, and that agricultural purposes shall have preference
over all other purposes except domestic use." If the holder of an
appropriative right abandons or ceases to use the water for a- period
of five years, the right ceases; but the holder may be granted extensions
ofltime by the State Engineer, upon a showing of reasonable cause for
nonuse of the water, after publication of the application and hearing
of protests.'
The statutory procedure is the exclusive method of appropriating
water in Utah. There was sone question as to this as the result of
a statement made in 1935 in the: prevailing opinion in Wrathall v.
Johnson,tO even though that statement appears to have been dictum;
but shortly after the rendering of that decision, the legislature amended
the appropriation statute to provide explicitly that no appropriation
of water could be made and no right to the use thereof initiated other-
wise than in the manner provided in the statute." The Utah Supreme
Court stated in 1948, with reference to a use of water first made in
1925 or 1926, that at that tiine the only way in:which the right of use
could be initiated was by filing an application with the State Engineer,
and the only way in which the water could be appropriated was through
the statutory procedure.", And in 1949 the court stated that the 1935
amendment, "enacted immediately after the Wrathall decision and
undoubtedly with this holding in mind, leaves no doubt that thereafter
no right to the use of the unappropriated public waters of this state
can be acquired without complying with the statutory requirements."
The question as to whether title to a water right might be acquired
solely by adverse use, or after abandonment by a prior appropriator
without making a new statutory appropriation, also was the subject of
controversy; and again the legislature acted by providing that the
statute relating to abandonment or forfeiture of the appropriative right
should be applicable whether the unused or abandoned water is per-

copy of a contract for the payment of royalties to the State: Utah Code Ann.
1943, I 100-3-8. The enforcement of this requirement with respect to an
application to appropriate water from Great Salt Lake for the purpose of
recovering salt was approved by the supreme court: Deseret Livestock Co. v.
State, 110 Utah 239, 243-245, 171 Pac. (2d) 401 (1946).
"*Utah Code Ann., 1943, 100-3-21.
Utah Code Ann., 1943, 100-1-4.
Wrathallv. Johnson, 86Utah 50, 108-120,40 Pac. (2d) 755 (1935).
m Utah Laws 1935, ch. 105; Utah Code Ann., 1943, 100-3-1.
Smith v. Sanders, 112 Utah 517,520, 189 Pac. (2d) 701 (1948).
"Hanson v. Salt Lake City, Utah -, 205 Pac. (2d) 255, 260 (1949).
See also Riordan v. Westwood, Utah -, 203 Pac. (2d) 922, 927 (1949).
"Hammond v. Johnson, 94 Utah 20, 28-33, 66 Pac. (2d) 894 (1937), 94
Utah 35, 39-40, 75 Pac. (2d) 164 (1938); Adams v. Portage Irr., Res. & Power
Co., 95 Utah 1, 16, 72 Pac. (2d) 648 (1937), 95 Utah 20, 21-22, 81 Pac.
(2d) 368 (1938).


mitted to run to waste or is used by others without right, and that no
right to the use of water either appropriated or unappropriated could
be acquired by adverse use or adverse possession.=
The doctrine of prior appropriation has been the law in Utah from
the time the Mormon pioneers entered Great Salt Lake Basin in 1847,
to the exclusion of any recognition of. riparian rights. It was many
years after the first settlement and use of water before the Territorial
supreme court was called ;upon to recognize and apply the doctrine of
appropriation," although in the meantime that doctrine had been
adopted and applied by custom in thvarious irrigation communities.7
And it was not untif 1891 that'the-supreme court had occasion to
express its repudiation of the doctrine of riparian rights, in emphatic
terms, as utterly inapplicable to the conditions within the Territory
and as never having been recognized by the legislature or by the
practices and ages of the inhabitants."s, "In Utah the doctrine of
prior appropriation for beneficial use is, and always has been, the basis
of acquisition of water rights." 30
Waters in definite underground streams have been held consistently
to be the subject of *appropriation. 8 With respect to other ground
waters, however, the decisions of the supreme court have passed through
the stages of recognizing first the rule of absolute ownership of per-
colating water as against appropriations initiated after the water-
bearing lands had passed to private ownership, but of holding that

"Utah Laws 1939, ch. 111; Code Ann., 1943, S 100-1-4 and 100-3-1.
m Crane v. Winsor, 2 Utah 248, 253 (1878); Munroe v. Ivie, 2 Utah 535,
537-538 (1880); Lehi Irr. Co. v. Moyle, 4 Utah 327, 340, 9 Pac. 867 (1886);
Elliott v. Whitmore (Utah), 24 Pac. 673 (1890).
The earliest legislation concerning water made grants of water privileges
and authorized public officials to makegrants: Laws and Ordinances of the
State of Deseret (Utah), Compilation 1851, Shepard Book Co., Salt Lake City,
Utah, 1919. A statute passed in 1880 recognized accrued rights to water
acquired by appropriation or adverse use: Utah Laws 1880, ch. XX. The first
statutory authorization for the future appropriation of water was provided by
Laws 1897, p. 219, et seq.
"Stowell v. Johnson, 7 Utah 215, 225-226, 26 Pac. 290 (1891). See also
Salt Lake City v. Salt Lake City Water & Electrical Power Co., 25 Utah 456,
464, 71 Pac. 1069 (1903); State v. Rolio, 71 Utah 91, 101-107, 262 Pac. 987
(1927); Wrathall v. Johnson, 86 Utah 50, 93-94, 40 Pac. (2d) 755 (1935);
Whitmore v. Salt Lake City, 89 Utah 387, 398, 57 Pac. (2d) 726 (1936);
Spanish Fork West Field Irr. Co. v. District Court, 99 Utah 527, 534, 104 Pac.
(2d) 353 (1940); Moyle v. Salt Lake City, 111 Utah 201, 216, 176 Pac. (2d)
882 (1947); Clark v. Nash, 198 U. S. 361, 370 (1905).
Gunnison Irr. Co. v. Gunnison Highland Canal Co., 52 Utah 347, 354,
174 Pac. 852 (1918).
Willow Creek Irr. Co. v. Michaelson, 21 Utah 248, 254, 60 Pac. 943
(1900); Herriman Irr. Co. v. Keel, 25 Utah 96, 110, 69 Pac. 719 (1902);
Howcroft v. Union & Jordan Irr. Co., 25 Utah 311, 316, 71 Pac. 487 (1903);
Whitmore v. Utah Fuel Co., 26 Utah 488, 497-498, 73 Pac. 764 (1903);
Chandler v. Utah Copper Co., 43 Utah 479, 486, 135 Pac. 106 (1913).


water taken from land on the public domain is subject to appropriation,
whether it.is percolating or stream water;8 then the rule of correla-
tive rights as between owners of land overlying a common artesian
basit;-? and finally the doctrine of appropriation of artesian water.m
In 1935 the legislature amended the statute relating to the appropria-
tion of water in order to bring the acquisition and administration of
rights to the use of all ground waters under the State Engineer,"~ and
at subsequent sessions has further amended and enlarged the applicable
sections of the law. Rights to the use of any unappropriated ground
waters may be acquired only as provided by the statute, the first step
being the making of an application to the State Engineer, as in case of
appropriations from surface supplies. Claimants of rights are required
to file notice of their claims with the State Engineer.81 The right of
replacement of water may be exercised by a junior appropriator of
ground water where the appropriation may diminish the quantity or
impair the quality of ground water already appropriated.?"6 The State
Engineer:may hold hearings to determine if ground waters-are inade-
quate foriexisting claims, a supply found to be inadequate to be divided
in accordance with the respective rights of the claimants,?7 The State
Engineer is authorized to plug, repair, or otherwise control artesian wells
that are wasting public water.8
:in 1949 the Utah Supreme Court had for consideration a proposal
to appropriate water from a small spring area on private land, which
water was said to be widely diffused through the soil through which it
slowly percolated, the course of which could not be traced to any lands
other than those on which the water was found, and which in its
natural state produced plant life and thereby beneficially affected the
land.f Such water, said the court, is percolating water, a part of the
S Stlivan v. Northern Spy Min. Co., 11 Utah 438, 441, 40 Pac. 709 1895);
Crescent Mia. Co. v. Silver King Min. Co., 17 Utah 444, 451, 54 Pac. 244
(1898); Willow Creek Irr. Co. v. Michaelson, 21 Utah 248, 254, 257, 60 Pac.
943 (1900); Herriman Irr. Co. v. Keel, 25 Uiah' 96, 109-110, 69 Pac.
719 (1902); Gafns v. Rollins, 41 Utah 260, 265-266, 123 Pac. 867 (1912);
Stookey v. Green, 53 Utah 311, 317-318, 178 Pac. 586 (1919); Holman v.
Christensen, 73 Utah 389, 395, 274 Pac. 457 (l929).
"Horne v. Utah Oil Refining Co., 59 Utah 279, 301-305, 202 Pac. 815
(1921); Glover v. Utah Oil Refining Co., 62 Utah 174, 1.77-181, 218 Pac. 955
(1923); Utah Copper Co. +. Stepfhei Hayes Estate, '83 Uta& 45, 555-SS6,
31 Pac. (2d) 624 (1934).
Wrathall v. Johnson, 86 Utah 50, 103-106, 126-127, 40 Pac. (2d) 755
(1935); Iustesen v, Olsena 86 Utah !58, 170-172, 176-477, 4R Pac. (24): 802
(1935); Hanson v. Salt Lake City, Utah -,205 Pac. (2d) 255, 258' (1949).
SUtah Laws 1935, ch. 105.
Utah Code Ann., 1949 Cum. Supp., 100-5-12 and 100-13S..
Utah Code Ann., 1943, 100-3-23 .
Utah Code Ann., 1943, 100-5-1. .
SUtah Laws 1945, ch. 136; Code Ann., .949 Cemw, Sapp., 100-2-21w
'"Riordan v. Westwood, -Utah -W; 203 Pac. (2d) 922i 929.930 (1949).

_~ __

soil; and not being public water, a right to.the use thereof cannot be
acquired by appropriation under the appropriation statute. But the
court stated that waters, even though diffused and percolating through
the soil, which do not sustain plant life or otherwise benefit the land,
"are not necessarily a part thereof and to the end that they might be
placed to a beneficial use should belong to the public and be subject
to appropriation the same as other waters." Hence, as it seemed prob-
able that there was more than sufficient water in this spring area to
sustain the plant life, it was held that the application to appropriate
excess water must be approved.
Procedure for the determination of water rights is provided by statute
in suits filed by the State Engineer upon petition of water users or by
private parties." In suits filed by the State Engineer, and in general
determinations begun by private parties, the State Engineer provides
the court with lists of all claimants so far as known, aid makes hydro-
graphic surveys and proposed determinations of water rights, the final
judgment of the court determining and establishing the rights being
entered after the hearing of objections by claimants. The State
Engineer has general administrative supervision of the waters of the
State." He may appoint water commissioners for the distribution
of water from any source of supply, after consultation with the water
users and in accordance with their recommendations if they can
agree."7 He also has authority to establish water districts a and to
define ground-water administrative areas:*4

The law regulating the appropriation of water provides that subject
to existing rights, all waters within the State belong to the public, and
that any right to the use thereof may be acquired by appropriation in
the manner provided in the statute and not otherwise.8"' The admin-
istration of the act-is vested in an engineer designated as the State Su-
pervisor of Hydraulics, who is an assistant director in the Department
of Conservatioi and Development. An intending appropriator must
apply to the State Supervisor of Hydraulics for a permit to make the
appropriation; and when the permitted has made a satisfactory showing
that his appropriation has. been perfected he receives a certificate of
Ut'ah Code Ann., 1943,and 1949 Cuin. Suppi, lt 10-4-1.o 100-4-24.
m Utah Code Ann., 1943, 100-2-1.
Utah Code Ann., 1943, 100-5-1.
m Utah Code Ann., 1943, 100-2-1.
m Utah Code Ann., 1943, 100-5-1.
"Wash. Rem. Rev. Stats., 7351.
SWaih::Ret. Rev. Stat., 1 7355.
WW R,.Rem.v Sifta., g 7398 to:1387, 7390.

Any person may condemn an inferior use of water for a superior
ute."' The court in the condemnation proceedings is to determine
what use will be for the greatest public benefit, and that use is to be
deemed a superior one. However, the statute further prvi tht
no person may be deprived of the use of water reasonably necessary
for the irrigation of his land then under irrigation, by the most eco-
nomical method of artificial irrigation, in favor of another irrigation
use, the court to determine the most economical method. .The Su-
preme Court of Washington allowed the condemnation, primarily for
domestic:purposes, of a water supply on another's land not then being
used by the landowner, pursuant to this statute, holding that the use
of water for domestic purposes is a public purpose when the domestic
use desired is the foundation of an agricultural enterprise
The riparian doctrine has been recognized repeatedly in the court
decisions of Was~ngto Very early decisiotis of the supreme court
acknowledged'th validity'bf apiopriations of water on public lands
of the United States pursuant to local, laws and customs, under authority
granted by Acts ldfigi; eisan' i nu nmber of subsequent cases
the supreme court, in stating the appropriative principle, carefully
restricted its applicability to the public domain.'" Adoption of the
riparian principle likewise appeared in early cases,t2 qualified by the
recognition of prior appropriations on public c lands.'"s In 1897 the
Washington Supreme Court held that riparian rights existed in the arid
as well as the humid portions of the State, and that such rights attached
to lands passing to private ownership at the inception of title thereto
and would be protected as against subsequent appropriations.8" But
the time element works in favor of appropriative rights likewise; that
is, a#t appropriation of water, validly acquired, is superior to riparian

Wash. Rem. R.iev Stats., 7354.
S- aele !sel Adersen v. Superior Court, 119 Wash. 406, 410-411, 205
Pac,.05k (1922).
Thotpi Mv. Tetem Ditdh Co., 1 Was. 566, 569570, 20 Pac. 588 (1889);
SGeddis v. Parrish, 1 Wash. 587, 589-592, 21 Pae. 314 (1889); Isaacs v. Barber,
10 Wash. 124, 18-132,38 Pae. 871 (1894).1 ,
See Benton v. Johncox, 17 Wash. 277289, 49 Pac. 495 (1897); Sandet v.
Bull, 76 Wash. 1, 5,135 Pac. 489 .1913); Hough v. Taylor, 110 Wash. 361, 364-
365, 188 Pac. 458 (1920); in re Doan Ctesk, 125 Wash. 14, 20, 215 Pac. 343
Crook v. Hewitt, 4 Wash. 749, 750, 734, 31 Par. 28 (1892); Soofwell v.
Dodge, 8 Wash. 337, 339, 36 Pac. 254 (1894); Rigney v. Tacoma Light &
Water Co., 9 Wash. 576, 582-583, 38 Pac. 147 (1894).
"Ilaacsv. Barber, 1 Wash. 124,128-129,38 Pac. 871 (1894).
DBenton v. Johncox, 17 Wash. 277, 279-283, 288-290, 49 Pac. 495 (1897).
Reaffrmed in- Neshous v. Walker, 45 Wash. 621, 623-624, 88 Wash. 1032
(1907). See In re Doan Creek, 125 Wash. 14, 20, 215 Pac. 343 (1923).

_I ___~__

rights of lands entered after the date of the appropriation.88. The
common-law doctrine has been modified by imposing upon the riparian
claimant the necessity of beneficial use of the water, and by subjecting
to appropriation for use on nonriparian land the waters of nonnavigable
streams in excess of the quantity that cap be used beneficially, either
directly or prospectively, within a reasonable time, on or in connection
with riparian lands."8 The supreme court has stated that "The
common-law rule of riparian rights has been stripped of some of its
rigors *",ss7 and that "For years past, the trend of our decisions
and the tenor of our legislation have been to restrict and narrow the
common law of riparian rights ** *".*s As a result, the advan-
tage of position of riparian lands with reference to water rights has
been materially reduced.8s
The supreme court stated in an early decision that an underground
stream with defined course and boundaries would be protected to the
same extent as such a stream on the surface, but that such rule would
not apply to water percolating through sand or gravel the limits of
which were not defined.8? Subsequently the court adopted a rule of
reasonable use and correlative rights in percolating waters as among
In re Doan Creek, 125 Wash. 14, 20, 215 Pac. 343 (1923); Weitensteiner
v. Engdahl, 125 Wash. 106, 108-116, 215 Pac. 378 (1923); In re Alpowa
Creek, 129 Wash. 9, 13, 224 Pac. 29 (1924); Hunter Land Co. v. Laugenour,
140 Wash. 558, 569-571, 250 Pac. 41 (1926); In re Sinlahekin Creek, 162 Wash.
635, 642-643, 299 Pac. 649 (1931).
Brown v. Chase, 125 Wash. 542, 549, 553, 217 Pac. 23 (1923). See also
Proctor v. Sim, 134 Wash. 606,616-619, 236 Pac. 114 (1925); State v. American
Fruit Growers, 135 Wash. 156, 161, 237 Pac. 498 (1925); Hunter Land Co. v.
Laugenour, 140 Wash. 558, 569-571, 250 Pac. 41 (1926)
In re Alpowa Creek, 129 Wash. 9, 13, 224 Pac. 29 (1924).
m Proctor v. Sim, 134 Wash. 606, 616, 236 Pac. 114 (1925).
Holdings and statements concerning the nature and extent of the riparian
right, other than as noted above, are included in various cases of which typical
ones are here noted. Reasonable use of water as among riparian owners: Mc-
Evoy v. Taylor, 56 Wash. 357, 358, 105 Pac. 851 (1909). Impounding of
water: Tacoma Eastern R. R. v. Smithgal{, 58 Wash. 445, 452, 108 Pac. 1091
(1910). Right to overflows of streams; impounding of water; applicability
of Desert Land Act: Sill v Palouse Irr. & Power Co., 64 Wash. 606, 610-613,
117 Pac. 466 (1911). 'Riparian lands: Millerv. Baker, 68 Wash. 19, 20-22, 122
Pac. 604 (1912). Relation to navigability of waters: State ex rel. Ham, Yearsley
& Ryrie v. Superior Court, 70 Wash. 442, 451-453, 126 Pac. 945 (1912). Im-
pounding of water: Sumner Lumber & Shingle Co. v. Pacific Coast Power Co.,
72 Wash. 631, 640-641; 131 Pac. 220 (1913). Nonnavigable waters; appli-
cability of Desert Land Act: Bernot v. Morrison, 81 Wash. 538, 559-560, 143
Pac. 104 (1914). Riparian lands; apportionment of water: Mally v. Weiden-
steiner, 88 Wash. 398, 402, 153 Pac. 342 (1915). Right to overflows of streams:
Longmire v. Yakima Highlands Irr. & Land Co., 95 Wash. 302, 305-306, 163
Pac. 782 (1917). Riparian lands: Yearsley v. Cater, 149 Wash. 285, 288-289,
270 Pac. 804 (1928).
Meyer v. Tacoma Light & Water Co., 8 Wash. 144, 147, 35 Pac. 601

owners of overlying lands; $a and held in 1935 that in line with that
doctrine, A city that had excavated a ditch in order to operate more
efficiently a gravel pit, thereby cutting off percolating water supplying
neighboring lands, was making a reasonable use of its own property
and was not liable for the resulting effect on the ground-water supply.80s
The legislature in 1945 enacted a statute for the express purpose of
extending the application of the surface-water statutes to the appropria-
tion and beneficial use of ground waters, and amended the act in 1947
and 1949." Ground waters are defined as all bodies of water that
exist beneath the land surface and that there saturate the interstices of
rocks or other materials--that is, the waters of underground streams or
channels, artesian basins, underground reservoirs, lakes or basins, the
existence or boundaries of which may be reasonably established or
ascertained. The act recognizes a distinction between water that exists
in underground storage wholly because of natural processes, which it
terms "natural ground water", and water that is made available in
underground storage aritificialy, either intentionally or incidentally to
irrigation, which is designated as "artificially stored ground water."
Subject to existing rights, all natural ground waters, and all artificial
ground waters not abandoned or forfeited, are made subject to appro-
priation. Exempted are withdrawals of ground waters for stock-
watering purposes, or for the watering of lawns or noncommercial
gardens not exceeding one-half acre in area, or for single or group do-
mestic uses or industrial purposes not exceeding 5,000 gallons per day;
but the party using ground water not exceeding such quantity may elect
to make a formal appropriation thereof under the procedure provided
in the act for withdrawals of ground water in excess of that quantity.
Provision is made for the filing of declarations of claims of preexisting
vested rights and for the issuance of certificates of appropriation with
respect thereto. The Supervisor of Hydraulics has authority to desig-
nate ground-water areas or subareas, and separate depth zones therein,
after hearings, and to regulate withdrawals of watet when the supply
'is inadequate to supply all rights. A proceeding is provided for the
determination by the Supervisor of abandonment of ground-water
rights where the withdrawal and use of the water has been discontinued
for a period of five years.
The Supervisor of Hydraulics is authorized to initiate proceedings
for the determination of water rights, upon petition of one or more
claimants, or when in his judgment the interest of the public will be
served thereby.?" A statement isfiled with the court, which is required
Patrick v. Smith, 75 Wash. 407, 414-415, 134 Pac. 1076 (1913).
SEvans v. Seattle, 182 Wash. 450, 457-460, 47 Pac. (2d) 984 (1935).
Wash. Laws 1945, ch. 263; Laws 1947, ch. 122; Laws 1949, ch. 63; Wash.
Rem. Rev. Stats., Supps. 1945, 1947, and 1949, 7400-1 to 7400-19.
m Wash. Rem. Rev. Stats., 7364 to 7377.

IZ.- -41

to refer the proceedings to the Supervisor for the taking of testimony as
referee. When the transcript and report have been filed, the court
hears the matter and renders its decree. Supervision of public waters
and administration of the provisions of the water appropriation statutes
are vested in the Supervisor of Hydraulics, who has supervision over
the distribution of water according to rights and priorities." He is
authorized to designate water districts from time to time as required,
and to appoint watermasters therefore upon petition by interested parties.
He is also required to appoint stream patrolmen for designated streams
the water rights of which have been adjudicated, upon application of
interested parties and approval of the district watermaster if one has
been appointed for such area, for whatever periods of time local con-
ditions justify.

The constitution of Wyoming declares that the control of water must
be in the State, which in providing for its use shall guar0 equally all
the various interests involved." It declares also that the water of all
natural streams, springs, lakes or other collections of still water within
the State are the property of the State; that priority of appropriation
for beneficial uses shall give the better right; and that no appropriation
shall be denied except when such denial is demanded by the public
interests.87 The constitution provides for the appointment of a State
Engineer; for the division of the State by thelegislature into four water
divisions and the appointment of superintendents thereof; and for a
Board of Control to be composed of the State Engineer and superin-
tendents of the water divisions, the State Engineer being president.88
The supervision of the waters of the State and of their.appropriation,
distribution, and diversion is vested by the constitution in the Board
of Control, its decisions being made subject to review by the courts."
An appropriative right is initiated by making application to the State
Engineer for a permit to make the appropriation; and the final step,
after the appropriation has been perfected in accordance with the
permit, is the adjudication of the right by the Board of Control and the
issuance by. the Board of a certificate of appropriation.4 Since the
adoption of the present water-appropriation statute in 1890, at the first
session of the State legislature, compliance with the procedure so
provided for the acquisition of water rights is a condition precedent to
Wash. Rem. Rev. Stats., 7351-1 to 7351-4 and 7355 to 7363.
SWyo. Const., art. I, 31.
Wyo. Const., art. VIII, 1 and 3.
Wyo. Const., art. VIII, 2, 4, and 5.
SWyo. Const., art. VIII, 2.
Wyo. Comp. Stats., 1945, 71-238 to 71-250.


the making of a valid appropdation.* Falure to make useof ap-
ptopriated water for five succe sie years is to be considered an aban-
donment of the same, and works a forfeiture of the water right.40
Predurei provided for the declaration of such abandonment by the
Board of Control after a hearing& on the initiative of any water user
who might be affected thereby. The declaration is filed in court; if
no objection is filed, judgment affirming the Board's order is issued;
if there is objection, the water user who initiated the proceeding
becomes plaintiff and. the objector defendant, and the issue is tried as
to whether ornot the watertight as in fact been abandoned.'*4
The water appropriation statute defines preferred uses as including
rights for domestic and transportation purpoMes, and these include:
First, drinking; second, municipal; third, steam engines and general
railway use; and fourth, culinary, laundry, bathing, refrigeration, and
heating plants. Likewise, the use of water for irrigation is to be pre-
ferred to any use through 'turbine or impulse water wheels for power
purposes. Existing rights that are not preferred may be condemned to
supply water for preferred uses." Procedure is provided for changing
a use to a preferred use under the direction of the Board of Control,
just compensation to be paid if the change of use approved. -
Riparian rights never have been recognized in Wyoming. The un-
suitability of the common.law doctrine to local conditions, and the
fact that such rule never had obtained in that State, which on the
contrary had recognized a "different principle better adapted to the
4 Wyoming Hereford Ranch v. Hammend Packing Co., 33 Wyo. 14, 30-38,
236 Pac. 764 (1925), .See Campbell v. Wyoming Development Co., 55 Wyo.
347, 388, 395, 100 Pac. (2d) 124 (1940). In 1949, in Laramie Rivers Co. v.
LeVassen, 65 Wyo. 414, 431, 202 Pac. (2d) 680 (1949), the cotrt stated,
citing the Wyoming Hereford case: "We have heretofore held that no water
right may be initiated under our present laws except pursuant to a permit;
that hence the requirement of such permit is mandatory."
Wyo. Comp. Stats., 1945, 1 71-701.
"Wyo. Comp. Stats., 1945, 1 71-702 to 71-707. The statute has been
construed in sew'rakdecisions. See Wyoming Hereford Ranch v. Hammond
Packing Co., 33 Wyo. 14,23-27,236 Pac. 764 (1925); Van Tassel Real Estae &
Iest rtok Co vG. ACh n 49 Wyo. 3S, 349-355, 54 Pac. (2d) 906 (1936);
Hpse Creek Conservmion Dist. v. LinfQ Land Co., 54 Wyo. 320, 329-345,
9 .Pac. (2d) 572 (1939); Campbell v. Wyoming Devmlojint Co., 55 Wyo.
347, 400-404, 100 Pac. (2d), 124: (140), In such proceeding the burden f
proving the iscue of- absa4qm~et rests upon the one who petitions to have
the water right declared abadonhedt Ramsay v. Gouckh,. &1 Wyo 516, 529-
530, 69 Pac. (2d) 535 (1937).;; Seealo.i iaL se R Riem Co. ~~L~as er,
65 Wyo. 414, 449, 202 Pac. (2) 68Q (1949),; it. waszbeld in Reasy v.
Gottsche, supra, at 51 Wyo. 532, and in Scherck v. Nichols, 55 Wyo. 4, 23-4,
95 Pac. (2d) 74 (1939), that abandonment must be voluntary, and does not
result if nonuse is caused.by fatct!ot vdcr ,the appropriators control.
Wyo, Comp. ftatsi, 1945, &17-4. ;
SWyo. Comp. Stats., 1945, 71-403. See Newcastle v. Smiwt, 28 Wyo.
371, 205 Pac. 302 (1922).

~~_~___ ~_ ~u~a;---cP-~j~

material conditions of this region"-that is, the doctrine of prior ap-
propriation-were emphasized by the Supreme Court of Wyoming in
the decision rendered in Moyer v. Preston in 1896.M0 The court stated
that it inclined strongly to the view that had been expressed some years
before by the Supreme Court of Colorado 4M to the effect that the right
of prior appropriation, and the obligation to protect it, had existed
prior to any legislation on the subject.
The supreme court held in 1919 that the constitutional declaration of
public waters included natural but not artificial springs, and that a
spring developed artificially, and supplied by percolating waters, is not
subject to appropriation but is the private property of the landowner."
The legislature in 1947 enacted a law extending the principle of
prior appropriation torights to the use of ground waters." Exempted
are developments solely for domestic, culinary, or stock use on a ranch
or farm, and irrigation of lawns and gardens not exceeding four acres
b in area. Claimants of ground-water rights antedating the enactment
of the statute are required to file statements of their claims with the
State Engineer on or before December 31, 1950."0 Appropriations
after the passage of the act are made by developing the ground water
and filing with the State Engineer registrations of the wells or other
means of obtaining the water. After the State Engineer has deter-
mined the water-bearing capacity of an underground formation, the
Board of Control is authorized to adjudicate the.water rights thereto
and to issue certificates of appropriation based upon priority of appro-
priation. The procedure for declaring abandonments of surface-water
rights is made applicable to ground waters.
Statutory adjudications of water rights are initiated and made by
the Board of Control." The State Engineer in the original adjudica-
tion of a stream makes a hydraulic survey, and the water division
superintendent takes testimony with respect to claims of water rights.
The record is transmitted to the Board of Control, which enters an
order determining and establishing the priorities, each party whose
right is thus adjudicated being issued a certificate. Any aggrieved

"Moyer v. Preston, 6 Wyo. 308, 3180319, 44 Pac. 845 (1896). See als
Farm Investment Co. v. Carpenter, 9 Wyo 110, .122,61 Pae. 258 (1900). The
United States Supreme Court, in Wyoming v. Coeorado, 259 U. S. 419,458-459
(1922), stated with regard to the litigant States: I'he commonn;aw rule re-
specting riparian rights in flowing water never obtained in either State."
Coin v. Left Hand Ditch Co., 6 Colo. 443,446 (1882).
Hunt s. Laramie,ri6 Wy. t60, 160 1691 181Pat. 137 (1919).
Wyo. Laws 1947, ch. 107; Comp. Stats,, 1949 Cum. Supp., 714-08
to 71-420.
ceBy amendment of 5, ch. 107, Wyo. Laws 1947, the filing time was ex-
tended to December 31, 1950: Wyo. Laws 1949, ch. 22.
Wyo. Comp. Stats., 1945, 71-203 to 1i-216, 71-224 to 71-237. and
71-256 to 71-263..


party may appeal to the district court. The final orders or decrees of
the Board in the adjudication of water rights are conclusive, subject
to procedural provisions of law relating to rehearings and reopening
of orders or decrees, and subject to the right of appeal to the courts."2
The Wyoming Supreme Court held this statutory determination of
water rights to be a valid exercise of legislative authority, the power of
the Board being quasi-judicial only, and properly conferred upon
executive officers.1' This "Wyoming method" of determining water
rights by an administrative agency acting in a quasi-judicial capacity,
without a court hearing unless an aggrieved party appeals to the court,
was adopted by the legislature of Nebraska and was held constitutional
by the supreme court of that State, and was also adopted in Texas but
held invalid there.1"
Pursuant to constitutional mandate," the legislature divided the
State into four water divisions and provided for the appointment of
superintendents thereof,'" who together with the State Engineer con-
stitute the Board of Control. The Board of Control has the responsi-
blity of creating water districts within the water divisions, each district 'b
having a water commissioner. Each division superintendent has general
control of the water commissioners within his division, and under the
general supervision of the State Engineer, has charge of the distribution
of water according to rights of appropriation."1

Wyo. Comp. Stats., 1945, 71-258.
Farm Investment Co. v. Carpenter, 9 Wyo. 110, 132-135, 143, 61 Pac. 258
The Nebraska Supreme Court considered the validity of the procedure at
length and upheld it, in Cratwford Co. v. Hathaway, 67 Nebr. 325, 365-368,
93 N. W. 781 (1903). The Texas Supreme Court, in Board of Water Engineers
v. McKnight, 111 Tex. 82, 92-97, 229 S. W. 301 (1921), ruled similar legis-
lation invalid as being in conflict with the constitution of that State in effect
when the legislation was enacted. However, in 1945, in Corzelius v. Harrell,
143 Tex. 509, 511-514, 186 S. W. (2d) 961 (1945), the Texas Supreme Court
pointed out that a constitutional provision authorizing legislation for the con-
servation and development of natural resources was not in effect when the water
statute was enacted but was in effect prior to the enactment of legislation for the
control of oil and gas; hence the McKnight case did not control the validity of
the oil and gas legislation, which was held constitutional.
Wyo. Const., art. VIII, 4.
Wyo. Comp. Stats., 1934, 71-101 and 71-102.
nl Wyo. Comp. Stats., 1945, 71-103 to 71-108, and 71-301 to 71-309.



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