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

It should be observed that the Act recog-
nizes and affords protection to vested rights.
Section 82a-704 provides for the determination
of such rights by the Chief Engineer and for a
review of his action by appeal to the appropriate
state district court. Section 82a-708 provides
for the determination of priorities of rights or
applicants for permits by the Chief Engineer
and for a review of his determinations by appeal
to the appropriate state district court.
It is true that the Act does not provide for
notice to persons, who may be adversely affect-
ed by the granting of a permit, of the hearing
or of the action by the Chief Engineer upon
applications for permits. However, permits are
necessarily granted subject to valid existing
vested rights and to prior appropriations, and
provision for the protection of those rights,
either by actions for damages or for injunction,
is carefully made by sections 82a-7l2 and
82a-716.
The power of a state either to modify or re-
ject the doctrine of riparian rights because un-
suited to the condi tions in the state and to put
into force the doctrine of prior appropriation
and application to beneficial use or of reason-
able use has long been settled by the adjudicated
cases.
Of course. such a modification in the law of
the state must recognize valid existing vested
rights, but we do not regard a landowner as hav-
ing a vested right in underground waters under-
lying his land which he has not appropriated
and applied to beneficial use.
We hold that the state could properly apply
the doctrine of prior appropriation and appli-
cation to beneficial use to unused and unappro-
priated waters so long as it recognized and
afforded protection to rights which landowners
had acquired at the time of the effective date of
the Act to appropriate and use water.
Whether such a change in the law of Kansas
is contrary to earlier decisions of the Supreme
Court of Kansas, it is cognizant with the latest
decision of the Supreme Court of Kansas in
State ex reI. Emery v. Knapp, 167 Kan. 546,
207 P.2d 440, which must be regarded as having
overruled the earlier cases.
There is no vested right in the decisions of a
court and a change of decision does not deprive
one of equal protection of the laws or property
without due process of law.
Even though prior decisions of a state court
have established a rule of property, a departure
therefrom in a subsequent decision does not,

50

without more, constitute a deprivation of prop-
erty without due process of law under the Four-
teenth Amendment.
The Fourteenth Amendment in guaranteeing
equal protection of the laws does not assure uni-
formity of judicial decisions or immunity from
judicial error. Likewise, it is well settled that a
legisla ture may change the principle of the com-
mon law and abrogate decisions made there-
under when in the opinion of the legislature it
is necessary in the public welfare.
Adequate water supply is a necessity. In the
arid and semiarid regions of the West it is im-
perative that all available water be utilized bene-
ficially and without waste. The accomplishment
of those ends is well within the competency of
the legislature.
Plaintiffs have not seen fit to invoke the
remedies afforded them by the Act. Those rem-
edies are adequate, we think, to afford protec-
tion to any vested rights of the plaintiffs.
We conclude that the Act is constitutional. 74
The Supreme Court of Kansas stifled the last
assault on the constitutionality of the Kansas ap-
propriation statutes in 1962. The litigation in
which it did so 75 had been instituted by an owner
of land in Harvey County to obtain an injunction
to prevent the City of Wichita from drilling and
pumping wa ter wells in the Equus beds area under
the provisions of the Kansas appropriation statutes.
The plaintiff had contended that the defendant's
activities would divert subterranean percolating
water from his land, cause irreparable damage, and
constitute an unconstitutional taking of property.
Upon trial, the district court found "each and all
of the issues of fact and law in favor of the plaintiff
and against the defendant, the City of Wichita." It
held that the "l945 water appropriation act of
Kansas as amended" was unconstitutional and that
the city should be permanently enjoined from us-
ing its wells. Upon appeal the Supreme Court of
Kansas. one justice dissenting, reversed the trial
judge and held that the appropriations statutes
were constitutional. Writing for the majority of the
Court, Justice Fatzer wrote:
\Ve find nothing in the Act which in any
manner offends the Fourteenth Amendment to
the constitution of the United States or in any
way violates the constitution of Kansas. ll1ere
is no inhibition in our constitution against legis-

74Baumann v. Smrha, 145 F. Supp. 617 at 624-25 (D. Kan.
J 956).
75William v. City of Wichita, 190 Kan. 317. 374 P.2d 578
(1962).