A term that is commonly used in water law is prior appropriation. Prior appropriation embodies the concept of “first in time, first in right.” That means the first individual to divert water to a beneficial use from a particular source of supply had priority over those that later staked claims to the same water source. In this example, the first user would have rights that are senior to the later and more junior users.
The system of priority is quite significant in the event of water shortages. If a governmental agency must reduce allocation from a particular source of supply, then the senior water right holders will be the last to be precluded from pumping water.
The prior appropriation doctrine was developed in the western United States during the gold rush in 1848. The miners faced the dilemma of needing to pipe water substantial distances from streams, along with the problem of allocating water shortages. Thus, the concept of prior appropriation emerged to prevent disputes among miners. The very concept was actually born out of the idea of laying stakes to gold mines.
Soon the prior appropriation doctrine evolved. It was first recognized in the 1855 Court case of Irwin v. Phillips. Farmers discovered the benefits of appropriation law and it expanded into a recognized system to deal with water shortages throughout arid western regions.
Eventually, the concept of abandonment was added as a way to extinguish water rights that were not being utilized. This freed water up for other, new users. Thus, the touchstone of prior appropriation is being able to divert water to a beneficial use. There are many types of beneficial uses including, but not limited to, domestic, recreational, industrial, municipal, and irrigation.
Although Kansas has a statutory system of allocating water, many elements of prior appropriation are embedded in Kansas law. Indeed, the Kansas legislature passed the Water Appropriation Act in 1945. As droughts and aquifer depletion continue to impact many parts of Kansas, prior appropriation concepts will continue to evolve under Kansas law.