Clark v. Allaman

Citations

• 71 Kan. 206
• 80 P. 571
• 70 L.R.A. 971
• 1905 Kan. LEXIS 119

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Common Law — Its Prevalence in Kansas Prior to 1868. From the time of their acquisition by the United States until 1868 the common law was prevalent over the separate portions of the region from which the state of Kansas was erected, under all civilized forms of governmental organization established for them; and from 1855 until 1868 the common law, not inconsistent with the constitution of the United States, the Kansas-Nebraska act, or statute law, was the rule of action and decision, any law, custom or usage to the contrary notwithstanding.</p> <p>2. -Rights of Riparian Owners. The rules of the common law relating to the rights of riparian owners to use the water of running streams were adapted to the conditions and wants of the early settlers of the territory and state of Kansas, and no usages or customs to the contrary were recognized or established by them.</p> <p>3. - Statute of 1868 Continued Existing Law. At the time of the enactment of the statute of 1868 continuing in force the common law as modified by constitutional and statutory law, judicial decisions, and the conditions and wants of the people, the rules of the common law relating to the rights of riparian owners to use the water of running streams had become incorporated into, and were a part of, the settled jurisprudence of the state.</p> <p>4. -Not Repeatable by Local Customs. By the enactment of'the statute of 1868 the settled law of the state relating to the rights of riparian owners to use the water of running streams did not become exposed to repeal by local customs to the contrary, nor by judicial recognition of such customs.</p> <p>5. Irrigation — Statute Required to Change Established Principles. Without statutory authority this court has no power to recognize or enforce in a limited section of the state new rules of law relating to the use of the water of running streams antagonistic to established principles of law already in force throughout the entire