WSP01080

• File Number: 8407.500
• Description: Platte River Basin - River Basin General Publications - Missouri River
• State: CO
• Basin: South Platte
• Water Division: 1
• Date: 6/1/1978
• Author: Missouri Basin Inter
• Title: Missouri River Basin Comprehensive Framework Study-revised Volume III-Law-policies-and Administration-Appendix
• Water Supply Pro - Doc Type: Report/Study

springs are, belong to the owner of the land as
much as the land itself, admits of no doubt." 58
Likewise, in the important 1944 decision of the
Supreme Court of Kansas that precipitated the
enactment of the Kansas appropriation statutes of
1945. the Supreme Court of Kansas stated, "An
owner of land owns its surface al1d underground
water by the same title that he owns the land it-
self, and the clay, gravel, coal, or oil within it,
even though these items of property differ in com-
ponent parts.,,59 These cases did not directly in-
volve, however, judicial holdings concerning the
relative righ ts of neighboring owners overlying a
common source of supply.
In ] 946, the Supreme Court of Kansas reiterated
earlier pronouncements to the effect that under-
ground waters are a part of the real property in
which they are located.6o The case in which it did
so, however, did not involve a question arising
under the then recently enacted appropriation stat-
utes. The case merely pertained to a cross-plaintiffs
alleged right to damages for violation of his rights
as a tenant under a written lease for the use of
water from another's land by virtue of a specific
oral contract between that other party and the
cross-plaintiffs original landlord. The earlier Kansas
cases were cited with reference to the applicability
of the sta tute of frauds. 61
In 1949 the Supreme Court of Kansas contin-
ued to talk in terms of riparian principles in a case
in which it affirmed a trial court's denial of a bill
brough t by a downstream riparian owner for a
mandatory injunction to compel various upstream
riparian owners to remove small dams built across
a creek.62 In discussing the natural flow and rea-
sonable use theories of the riparian doctrine, the
Court wrote:
The "reasonable use" theory prevails in the
great majority of states where the common-law
doctrine has been applied. And this theory, as
distinguished from the "natural flow" theory,
has been adhered to in this state whenever the
common-law doctrine of riparian rights was
under consideration by this court. . .63
The Court noted that on the appeal both sides
h~d relied rhiefly on the common law but that, in

58City of Emporia v. Soden, 25 Kan. 588, 608 (1881); Jobling
v. Tuttle, 75 Kan. 35 1,360.89 Pac. 699, 703 (1907).
.59State of Kansas ex reI. Peterson, v. Board of Agriculture, 158
Kan. 603, 609,149 P.2d 604,608 (1944).
60Arensman v. Kitch, 160 Kan. 783,165 P.2d 441 (1946).

61The statute as cited was Kan. G.S. 1935, 33-106. II now
appears as K.S.A. 33-106 (1964).
62Heise v. Schulz, 167 Kan. 34, 204 P.2d 706 (1949).
631d. at 43,204 P.2d at 712.

48

addition, the defendants had contended that cer-
tain statutes, including the appropriations statutes,
compelled affirmance of the trial court's judgment.
Concerning this contention, the Court wrote:
This statute and others enacted since 1917
(and perhaps since 1911) have undoubtedly
modified the common law doctrine of riparian
righ ts which theretofore had been the basic
principle of water rights in this state. State ex
reI. v. Kansas State Board of Agriculture, 158
Kan. 603,608, l49 P.2d 604. However, there is
no occasion here to discuss the extent to which
that common law doctrine may have been modi-
fied by the statutory enactments. We know of
no statute which would be of assistance or
solace to the plaintiff, and since he has failed to
establish any right to an injunction under the
broader and more elastic common law doctrine,
a further discussion of the statutory right of de-
fendants would be of little purpose.64
In 1956, the Supreme Court of Kansas again
applied riparian principles.65 The Court did ob-
serve, however, that the "defendants had not ap-
plied for any appropriation rights from the Division
of Water Resources under the provisions of G.S.:
1949, 82a-701 et seq.,,66 The decision was based
upon the reasonable use doctrine as outlined in the
Court's 1949 decision.
Since the enactment of the water appropriation
statutes in 1945 and thereafter, the courts have de-
cided three importan t cases involving the consti tu-
tionality of those statutes.67 The Supreme Court
of Kansas has also decided several other cases, of
considerably less importance, involving the appro-
priation statutes. 68
In the first of the three cases that recognized the
constitutionality of the water appropriations stat-
utes,69 a majority of the qualified owners of irriga-
ble lands on and near the Republican' River in
north-central Kansas petitioned the Chief Engineer
of the Division of Water Resources of the Kansas
State Board of Agriculture for authority to incor-
porate and also fiied an application for a permit to

64ld. at45, 204 P.2d at 713-14.
65Weaver v. Beech Aircraft Corp., 180 Kan. 224, 303 P.2d 159
(1956).
661d. at 229, 303 P.2d 163.

67State of Kansas, ex reI. Emery, v. Knapp, 167 Kan. 546, 207
P.2d 440 (1949); Baumann v. Smrha, 145 F. Supp. 617 (D.
Kan. 1956), affirmed 352 U.S. 863 (1956); and, Williams v.
City of Wichita, 190 Kan. 3 17, 374 P.2d 578 (1962).
68For example, see Artesian Valley Water Conservation Ass'n.
v. Division of Water Resources and Robert V. Smrha, 174
Kan. 212,255 P.2d 1015 (1953), and City of McPherson v.
Smrha, 179 Kan. 59, 293 P.2d 239 (1956).
69State of Kansas, ex reI. Emery, v. Knapp, 167 Kan. 546,207
P.2d 440 (1949).