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<br />Later in its history, the state turned to appropria-
<br />tion principles, which principles apparently did not
<br />become significantly successful until after 1945.
<br />Recognizing a dual loyalty to the opposing prin-
<br />ciples of riparian rule and appropriation doctrine,
<br />the state apparently followed the lead of California
<br />as outlined in one of the most famous water law
<br />cases in the west. 34 In doing so it refrained from
<br />following the lead of Colorad035 and refused to
<br />pay its allegiance to the appropriation doctrine to
<br />the exclusion of the riparian rule. As a resul t, early
<br />Kansas water law, and in fact Kansas water law
<br />down to 1945, consisted of a mixture of riparian,
<br />appropriation, and common law principles. Judicial
<br />decisions expousing riparian principles co-mingled
<br />with statutes embracing appropriation ideas. By
<br />and large it was a complex and unsatisfactory back-
<br />drop to water resource development.36 At the
<br />foundation was the basic antagonism between a
<br />doctrine (riparian) that rested up,on ideas of loca-
<br />tion and a contrary doctrine (appropriation),
<br />which rested upon recognition of industry and
<br />developmen t.
<br />In an important case decided by the Kansas
<br />Supreme Court in 1944.37 the problem came to
<br />the forefront in a dramatic way. TIle state brought
<br />a quo warranto proceeding questioning the autho-
<br />rity of the Division of Water Resources of the State
<br />Board of Agriculture and its Chief Engineer ( I) to
<br />conduct a hearing on a city's application for a
<br />permit to appropriate water from nearby ground
<br />water supplies for beneficial use or (2) to regulate
<br />or allocate the use of ground waters. During the
<br />course of its consideration of the appropriation
<br />statutes, the Supreme Court reaffirmed its approv-
<br />al of riparian and common law principles. Without
<br />applying consti tutional principles, the Courl ren-
<br />dered ineffective the appropriation statutes that
<br />had long been thought to be of controlling signifi-
<br />cance in many parts of the state.
<br />TIle ] 944 decision caused considerable alarm.
<br />Its implications were unsettling and rose to threa ten
<br />many interests. It is not surprising, then, that in
<br />August of 1944, Governor Schoeppel appointed a
<br />special study committee to investigate the laws of
<br />
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<br />34Lux. v. Haggin, 69 Cal. 255,4 Pac. 919, 10 Pac. 674 (1886).
<br />35Coffin v. Left Hand Ditch Co., 6 Colo. 443 (1882).
<br />
<br />361n a~dition to the remaining portions of this Section, see the
<br />SectIOn on Important Court Decisions Concerning Water
<br />Rights.
<br />37State of Kansas, ex reI. Peterson. v. Board of Agriculture,
<br />158 Kan. 603, 149 P.2d 604 (1944).
<br />
<br />44
<br />
<br />Committee reported to the governor in December
<br />of 1944. Among other things it wrote:
<br />It is essential to notice that the Kansas acts
<br />have not been effective in superceding the com-
<br />mon law and establishing an orderly system for
<br />the appropriation and use of water. While the
<br />legislature provided that the common law can
<br />be modified in accordance with the condition
<br />and wants of the people, the way in which such
<br />statutes have come before the court for inter-
<br />pretation has resulted in the reaffirmation of the
<br />common law. The latest case was that of State,
<br />ex reI. v. Kansas State Board of Agriculture,
<br />158 Kan. 603, June. 1944, where the court held
<br />the 19] 7 statute ineffectual to establish an ad-
<br />ministrative procedure for the appropriation of
<br />water.
<br />The situation created by this decision left
<br />Kansas as the only one of the seventeen western
<br />states without an effective statutory procedure
<br />for the appropriation of water , and the only one
<br />among sixteen of them without administrative
<br />procedure for the initiation and perfection of
<br />water rights.38
<br />The Committee also stat~d that it believed con-
<br />ditions in Kansas had greatly changed since the
<br />early adoption of the common law as applied to
<br />water use. It insisted that the time had come for an
<br />effective modification in terms of a system of ap-
<br />propriation based upon priority of right, a system
<br />recognizing, nevertheless, the right of common law
<br />owner to compensation for injuries, if any, to un-
<br />used common law rights.39
<br />In this regard the Committee wrote:
<br />It believes two things are needed, (1) to '
<br />establish the right of appropriation under the
<br />rule of priority of right, and (2) to establish
<br />adequate administrative control over the appro-
<br />priation of water to prevent overdevelopment
<br />of any source of supply with resulting injury to
<br />established uses.
<br />In order to effectually establish the rule of
<br />appropriation, the Committee firmly believes
<br />that he who appropriates and puts water to
<br />beneficial use should not thereafter be subject
<br />
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<br />have not previously established uses for reduc-
<br />tion in the flow of a stream or in the reduction
<br />of the ground water source of supply. That any
<br />one damaged by the appropriator's use should
<br />have the right to recover for actual damages.
<br />
<br />38 A Report to the Governor of Kansas, 6, Topeka, Kansas
<br />(Dec. 1944).
<br />391d. at 43.
<br />
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