Oklahoma Water Resources Bd. v. Central Oklahoma Master Conservancy Dist.

• Decision Date: 14 May 1968
• Docket Number: No. 42527,42527
• Court: Oklahoma Supreme Court
• Parties: OKLAHOMA WATER RESOURCES BOARD, Plaintiff in Error, and The City of Oklahoma City, a municipal corporation, Intervenor, v. CENTRAL OKLAHOMA MASTER CONSERVANCY DISTRICT, Defendant in Error.

Page 748

464 P.2d 748

OKLAHOMA WATER RESOURCES BOARD, Plaintiff in Error, and The City of Oklahoma City, a municipal corporation, Intervenor, v. CENTRAL OKLAHOMA MASTER CONSERVANCY DISTRICT, Defendant in Error.

No. 42527.

Supreme Court of Oklahoma.

May 14, 1968.

Supplemental Opinion on Rehearing March 4, 1969.

Syllabus by the Court

1. An appropriative claim under the provisions of 82 O.S.1951, §§ 1 and 91, is governed by the law in effect at the time of its initiation, and though it may remain inchoate for some period thereafter, such claim, when finally perfected, will relate back to the date of its initiation.

2. Under the provisions of 60 O.S.1951, § 60, the landowner cannot assert ownership in water 'forming a definite stream', and his rights therein are purely riparian.

3. Definite nonnavigable streams are public waters and the State may either reserve to itself or grant to others its right to utilize these streams for beneficial purposes.

4. Under the terms of 60 O.S.1951, § 60, diffused surface water may be appropriated by the owner of land over which it flows, and become his property When captured by him before it enters a definite stream.

5. Under the terms of 60 O.S.1951, § 60, one who constructs a dam across a definite stream may not claim any greater interest in the impounded water of the stream that he had in that stream before the dam was erected.

Appeal from District Court, Cleveland County; Elvin J. Brown, Judge.

Application by Conservancy District to the Water Resources Board for an order requiring Oklahoma City to release water from its dam across East Elm Creek. The Board declined to so order. Oklahoma City appeals from district court's reversal of the Board's action. Affirmed.

G. T. Blankenship, Atty. Gen. of Oklahoma, Brian H. Upp, Asst. Atty. Gen., Roy H. Semtner, Municipal Counselor, Robert H. Anderson, Asst. Municipal Counselor, for plaintiff in error and intervenor.

Sam F. Whitlock, Norman, for defendant in error.

Frank Carter, by Charles G. Huddleston, Enid, Otjen, Carter & Huddleston, Enid, of counsel, general counsel, Oklahoma Farm Bureau, amicus curiae.

Glenn O. Young, Sapulpa, for Landowners Protective Ass'n of State of Oklahoma, amicus curiae.

Dr. Joseph F. Rarick, Norman, amicus curiae.

McINERNEY, Justice.

This case presents competing claims by Oklahoma City (the City) and the Central Oklahoma Master Conservancy District (the District) to the water formerly flowing in the bed of East Elm Creek, a tributary of Little River. The waters of that creek became impounded when Elm Creek Dam was completed by the City in Oct. 1965, to form what is now called Stanley Draper Lake.

The City's claim to the water is predicated on its ownership of nearly all the land lying within the watershed of the creek. This land was acquired by successive purchases beginning in 1958. Since the stream of the creek was supplied by diffused surface waters originating on its own land, the City argues that it had 'the absolute right to capture, store and use such water without regard to the claims' of the District. The District relies on its prior and superior appropriative rights to 'all unappropriated waters in the Little River And its tributaries originating above that point where the main stem of the river intersects the Cleveland-Pottawatomie County Line * * *' (emphasis supplied). These rights, we are urged, attached in April 1953 in favor of the District's transferor, the Bureau of Reclamation of the United States Department of Interior, and were later perfected through undisputed compliance with the terms of 82 O.S.1951, § 91. According to the District, its rights as successor to the original appropriator (pursuant to the authority of 43 U.S.C. § 615aa) extend to all sources of supply for the main stream of East Elm Creek 'clear back' to the farthest limits of the watershed. In other words, the District takes the position that All waters physically tributary to a stream system are legally a part of the stream and subject to the claims of prior appropriators.

The Oklahoma Water Resources Board, where the proceeding under consideration had its inception, found that while East Elm Creek was a 'definite stream' within the meaning of 60 O.S.1951, § 60, the District is not entitled to procure a release of the impounded water because under the provisions of the cited statute, the City, as the owner of the entire watershed (less 240 acres), has 'the right to capture water falling on its property for private use' and that water was hence 'not subject to appropriation' as public water under the terms of 82 O.S.1951, § 91. On appeal to the district court the ruling of the Board was reversed as 'clearly erroneous'. The City was directed 'to forthwith release (from its Draper Lake reservoir) the average annual run-off of surface waters occurring north of * * * (the dam) within the watershed of East Elm Creek * * * impounded (there) as of October 1, 1966.' Under review here is the district court's judgment from which the City seeks corrective relief.

Before us is a conflict of rights between a prior appropriator of a stream system and a subsequent purchaser of land claiming absolute ownership of surface waters falling within its watershed. The extent of a prior appropriator's claim, if any, to surface waters supplying the stream to which his rights stand attached presents a question of first impression in this jurisdiction.

Surface waters are those which, in their natural state, occur on the surface of the earth in places other than definite streams or lakes or ponds. They may originate from any source and may be flowing vagrantly over broad lateral areas or, occasionally for brief periods, in natural depressions. The essential characteristics of such waters are that their short-lived flows are diffused over the ground and are not concentrated or confined in channel flows of definite streams, nor are they concentrated or confined in bodies of water conforming to the definition of lakes or ponds. Davis v. Fry, 14 Okl. 340, 78 P. 180, 182, 69 L.R.A. 460; Town of Jefferson v. Hicks, 23 Okl. 684, 102 P. 79, 82, 24 L.R.A.,N.S., 214; Clark, Waters and Water Rights, Sec. 52.1(A), p. 300.

The term 'surface water', traditionally employed by the common law, is somewhat misleading. This is so because all waters appearing on the surface of the earth, be they found in definite streams or elsewhere, are technically surface waters. In more recent times courts and scholars alike have preferred 'diffused surface water' as a more accurate and descriptive expression. Hutchins, Selected Problems in Western Water Law, p. 3; Clark, Waters & Water Rights, Vol. I, Sec. 52.1(A), p. 302; See Dolson, Diffused Surface Waters and Riparian Rights, Legal Doctrines in Conflict, 1966 Wis.L.Rev. 58. As the two terms, 'surface water' and 'diffused surface water', are synonymous, both will be used in this opinion.

Since pre-statehood days the system of prior appropriation has coexisted in Oklahoma with that of recognized riparian and proprietary rights in water. Gates v. Settlers' Milling, Canal & Reservoir Co., 19 Okl. 83, 91 P. 856. This court has not been called upon before to correlate these two separate doctrines of property which are to a substantial degree incompatible. There exists no controlling precedent to guide us in determining whether or how diffused surface waters may be subjected to appropriation under 82 O.S.1951, § 91. See Rarick, Appropriator vs. Riparian, A Preliminary Examination, 10 Okl.L.R. 416, 419, 423, 424; Hutchins, The Oklahoma Law of Water Rights, 1960 ed., pgs. 21, 22.

An appropriative water claim, once properly initiated in compliance with local statutes, is governed by the law in existence at that time, even though it may remain inchoate for some period thereafter. When the rights are finally perfected, they relate back to the initiation of the appropriation. 82 O.S.1951, § 1; Gay v. Hicks, 33 Okl. 675, 124 P. 1077, 1081; Gates v. Settlers' Milling, Canal & Reservoir Co., supra, 91 P. at 856; Maricopa County, etc. v. Southwest Cotton Co., 39 Ariz. 65, 4 P.2d 369, 382, 383; see also Hutchins, The Oklahoma Law of Water Rights, p. 32.

The time of initiation, so critical in determining the priority and quantum of appropriative rights, is controlled here by the terms of 82 O.S.1951, § 91. That statute was in effect when the Secretary of Interior notified the Okla. Planning and Resources Board (the predecessor of the Water Resources Board) of the Government's intention to utilize for its Little River Basin project certain waters unappropriated At that date. Among the waters described in the notice were those of East Elm Creek. The Secretary subsequently met All the remaining requirements of Sec. 91. By force of that statute and the Secretary's timely compliance with its terms, the waters of the creek were thus 'withdrawn' from appropriation by others, and the Government's claim to them, when later perfected, related back, by operation of law, to the date of its initiation in April of 1953. 82 O.S.1951, § 1. On the strength of these arrangements Congress authorized public funds to be appropriated for the Little River reservoir project (also known as the Norman project) which ultimately resulted in the construction of Lake Thunderbird. 43 U.S.C. §§ 615aa and 615hh. The district succeeded to these rights of the United States by transfer. One to whom a water right is transferred acquires the priority of the initial appropriation by the person with whom he is in privity of estate. 93 C.J.S. Waters § 184, p. 956.

Under the provisions of 60 O.S.1951, § 60, the landowner cannot assert ownership in water 'forming a definite stream'. His rights therein are purely riparian. Baker v. Ellis, Okl., 292 P.2d 1037; Smith v. Stanolind Oil & Gas Co., 197 Okl. 499, 172 P.2d 1002. When the appropriator's claim attached, East Elm Creek was, and until dammed by the City remained, a 'definite stream' within the...