855 P.2d 568 (1990)

FRANCO-AMERICAN CHAROLAISE, LTD., Mack M. Braly and Claudia M. Braly, Three B Land & Cattle Company, F.E. Bateman, Charles Bateman, W.A. Cannon, Gerald Don Stewart, Hershell Chronister, Jesse Berrie, Mrs. John Prater and Jack Dunn, Appellees,
v.
The OKLAHOMA WATER RESOURCES BOARD and the City of Ada, Oklahoma, Appellants.

No. 59310.

Supreme Court of Oklahoma.

April 24, 1990. Readopted, Reissued and Rehearing Denied April 13, 1993. Rehearing Denied June 14, 1993.

George W. Braly, Mack M. Braly, Messrs. Braly and Braly, Tulsa, for appellees.

Dean A. Couch, R. Thomas Lay, Oklahoma City, for appellant Oklahoma Water Resources Bd.

Joseph Rarick, Messrs. Younger & Files, Ada, for appellant City of Ada.

R. Steven Horn, Tulsa, for amicus curiae Oklahoma Wildlife Federation, Inc.

Diane Pedicord, Sue Ann Nicely, Oklahoma City, for amicus curiae, Oklahoma Mun. League.

Steven E. Moore, Diane Goldschmidt, Oklahoma City, for amicus curiae, Oklahoma Gas and Elec. Co.

Jay M. Galt, Messrs. Looney, Nichols, Johnson & Hayes, Oklahoma City, for amicus curiae, Oklahoma Rural Water Ass'n.

Robert D. Allen, Thomas Scott Jones, for amicus curiae, City of Oklahoma City and the Oklahoma City Mun. Improvement Authority.

Robert H. Anderson, Oklahoma City, for amicus curiae, McGee Creek Authority.

*570 OPALA, Justice.

This appeal challenges the constitutionality of the 1963 amendments to Oklahoma's water law insofar as the amendments regulate riparian rights.^[2] The case also raises a first-impression question about the interpretation of the requirements for perfecting an appropriative right under 82 O.S. 1981 § 105.12.^[3] We affirm the trial court's findings of fact, holding that they are supported by substantial evidence.^[4] The questions of law tendered for our resolution are:

1. What is the nature of the riparian right under Oklahoma common law?

2. To what extent did the 1963 amendments abrogate the common-law riparian right?

3. Are the 1963 amendments constitutional when measured by Art. 2, § 24 Okl. Const.?

4. Does 82 O.S. 1981 § 105.12(2) require consideration of an applicant's available groundwater in determining its need for stream water?

5. Does 82 O.S. 1981 § 105.12(4) require that an out-of-basin appropriation be granted subject to recall by in-basin *571 riparian owners and appropriative users?

We hold that the Oklahoma riparian owner enjoys a vested common-law right to the reasonable use of the stream. This right is a valuable part of the property owner's "bundle of sticks" and may not be taken for public use without compensation.^[5] We further hold that, inasmuch as 60 O.S. 1981 § 60, as amended in 1963, limits the riparian owner to domestic use and declares that all other water in the stream becomes public water subject to appropriation without any provision for compensating the riparian owner, the statute violates Art. 2 § 24, Okl. Const.

In addition, we declare that the California Doctrine of stream water rights,^[6] which recognizes riparian and appropriative rights as coexistent, is the prevailing law in Oklahoma; that the Oklahoma Water Resources Board [OWRB] may, in its discretion, find that an applicant for an appropriation has a need for stream water without regard to any claimed or perfected groundwater sources; that a perfected appropriative right is a vested right which may not be permanently divested except for nonuse after notice and hearing but is subject to senior appropriative rights and reasonable riparian uses during shortages; and that in the future a riparian owner seeking an appropriation of stream water must be deemed to have voluntarily relinquished his riparian rights in that stream water except for those preserved under the statute for domestic uses.

A. STATEMENT OF THE FACTS

Mill Creek is a spring-fed dry weather creek in the Upper Clear Boggy watershed within the Muddy Boggy River Basin. Byrd's Mill Spring flows directly into Mill Creek which in turn flows into Clear Boggy Creek. Clear Boggy Creek is joined by Buck Creek and flows downstream as Clear Boggy Creek where it joins Muddy Boggy Creek to form the Muddy Boggy River. The latter is a tributary of the Red River. In 1980 the area experienced a severe drought and the stream bed in Clear Boggy Creek went dry. In August of 1980 the City of Ada [City] made application, pursuant to 82 O.S. 1981 § 105.9, to increase its appropriation of water from Byrd's Mill Spring from 3,360 acre feet per year to 11,202 acre feet per year to meet a projected annual need of 10,523 acre feet per year by the year 2020. The City straddles two watersheds with approximately 80 percent in the South Canadian Stream Basin and 20 percent in the Clear Boggy Stream Basin. Riparian owners and inbasin appropriators objected to the City's application for additional stream water. The OWRB determined that the average yield of Byrd's Mill Spring is 9,820 acre feet per year. Prior appropriations, including that of the City and some appellee riparian owners, total 3,776 acre feet per year. Allowing 584 acre feet to supply domestic needs down to Buck Creek and 120 acre feet for unavoidable loss, the OWRB found the amount available for appropriation was 5,340 acre feet, 2,502 acre feet less than the 7,842 acre feet requested by the City. The City amended its application to conform to the finding. The OWRB then granted all 5,340 acre feet available for appropriation to the City, requiring the City to release at least 1,120 acre feet of water per year downstream. The OWRB order also required the City to meter and record monthly the amount of water taken from Byrd's Mill Spring. In-basin riparian owners and appropriators appealed from the administrative decision to the District Court, Coal County.^[7]

*572 B. COMMON-LAW AND STATUTORY AUTHORITY AFFECTING WATER RIGHTS

The Organic Act of 1890^[8] extended England's common law over Indian Territory. The same year the Territorial Legislature adopted a statute declaring the nature of water rights in the Territory:

"The owner of land owns water standing thereon, or flowing over or under its surface, but not forming a definite stream. Water running in a definite stream, formed by nature over or under the surface may be used by him as long as it remains there; but he may not prevent the natural flow of the stream, or of the natural spring from which it commences its definite course, nor pursue nor pollute the same."^[9]

This codification of the common-law riparian doctrine of water rights remained the law in Oklahoma until legislative adoption of the 1963 amendments.

In 1897 the legislature provided for the appropriation of the ordinary flow or underflow of stream water for the irrigation of arid sections of the State.^[10] The statute protected the riparian owner from the appropriation of the ordinary flow of the stream without the riparian owner's consent except by condemnation.^[11] In 1905 the provision protecting the riparian right was omitted.^[12] It was reinstated in 1909, then finally eliminated in 1910.^[13] In 1925 the legislature added a provision recognizing the priority of all beneficial uses of water initiated prior to statehood.^[14]

Since 1897 both the common law and the statutes have operated in Oklahoma to confer riparian and appropriative rights. Though these rights have coexisted in the State for almost 100 years, they are theoretically irreconcilable.^[15] The common-law riparian right extends to the reasonable use of the stream or to its natural flow, depending on the jurisdiction; the appropriative right attaches to a fixed amount. The last riparian use asserted has as much priority as the first; the appropriator who takes first has the senior right. In 1963 *573 the legislature attempted to reconcile the two doctrines. The amendments, shown in italics, are as follows:

"The owner of the land owns water standing thereon, or flowing over or under its surface but not forming a definite stream. The use of groundwater shall be governed by the Oklahoma Ground Water Law. Water running in a definite stream, formed by nature over or under the surface, may be used by him for domestic purposes as defined in Section 2(a) of this Act, as long as it remains there, but he may not prevent the natural flow of the stream, or of the natural spring from which it commences its definite course, nor pursue nor pollute the same, as such water then becomes public water and is subject to appropriation for the benefit and welfare of the people of the state, as provided by law; Provided however, that nothing contained herein shall prevent the owner of land from damming up or otherwise using the bed of a stream on his land for the collection or storage of waters in an amount not to exceed that which he owns, by virtue of the first sentence of this section so long as he provides for the continued natural flow of the stream in an amount equal to that which entered his land less the uses allowed in this Act; provided further, that nothing contained herein shall be construed to limit the powers of the Oklahoma Water Resources Board to grant permission to build or alter structures on a stream pursuant to Title 82 to provide for the storage of additional water the use of which the land owner has or acquires by virtue of this act."^[16]

Companion statutes limit riparian domestic use to household purposes, to the watering of domestic animals up to the land's normal grazing capacity, and to the irrigation of land not exceeding a total of three acres.^[17] The riparian owner may also store a two-year supply for domestic use.^[18] In addition, the 1963 amendments provided a validation mechanism as a method for protecting pre-existing beneficial uses, including those of the riparian owner and preexisting appropriators. All subsequent rights to the use of stream water, except for riparian domestic uses, are to be acquired by appropriation.^[19] The stream's natural flow is considered public water and subject to appropriation. Riparian owners may not assert their common-law right to the use of stream water other than for the domestic uses.^[20]

C. THE NATURE OF THE COMMON-LAW RIPARIAN RIGHT

Riparian rights arise from land ownership, attaching only to those lands which touch the stream. A riparian interest, though one in real property, is not absolute or exclusive; it is usufructuary in character and subject to the rights of other riparian owners.^[21] A riparian right is neither constant nor judicially quantifiable in futuro.^[22]

Under the natural flow doctrine, the riparian owner is entitled to have the water of the stream flow in its natural channel *574 without diminution or alteration.^[23] The riparian owner has the right to the natural benefits of the stream irrespective of his need to put the water to use even if he suffers no tangible harm by a diminution of the stream. The natural flow doctrine, which prevents any consumptive use, was early modified to allow for "natural" or domestic uses such as bathing, drinking, gardening, and stock watering.

Because the natural flow doctrine when "pressed to the limits of its logic enabled one to play dog-in-the-manger"^[24] and fostered waste, the majority of American courts have expressly adopted the reasonable use doctrine.^[25] An Ohio court first espoused the reasonable use doctrine in 1832.^[26] Its adoption was influenced by the rule that the riparian owner's remedy for interference with water rights was trespass on the case, an action requiring material injury. If the plaintiff can show no injury, the riparian owner's use is "reasonable" even though the normal flow of the stream is diminished.^[27]

This court first declared its adherence to common-law doctrine of riparian rights in Chicago, R.I. & P. Ry. Co. v. Groves.^[28] The issue there was whether the defendant-railroad could obstruct a well-defined channel causing flood waters to back up on the plaintiff's land. The court held that the riparian owner has the right to the stream's continuous flow as it has been accustomed to run and that no one can obstruct its course to the riparian owner's injury without being liable for damages.^[29] This court's consistent requirement of injury to the plaintiff is in line with its later express adoption of the reasonable use doctrine in Broady v. Furray.^[30] In Furray, a natural obstruction of sediment created a water impoundment on the defendant's property. The plaintiff complained that seepage from the impoundment was ruining his crops. This court affirmed the nisi prius determination that the plaintiff's fishing resort would be damaged more by the removal of the obstruction than the defendant was harmed by its presence. The opinion states that the plaintiff and the defendant, qua riparian owners, had reciprocal rights and each has a right to the reasonable use of the stream.^[31] Seven years later in Martin v. British American *575 Oil Producing Co.,^[32] though using some language consistent with the natural flow doctrine, we held that a riparian owner may use the stream water as long as the use is reasonable and does not tend to injure or damage other riparian owners. The reasonableness of use was deemed a question for the jury.

"Natural flow" language has been used by this court when the plaintiff challenged an obstruction causing too much water in the stream to the plaintiff's injury.^[33] But a careful reading of our decisions involving the taking of water from a stream reveals that, even when the natural flow doctrine is mentioned in dicta, the reasonable use doctrine is actually applied. In Smith v. Stanolind Oil & Gas Co.^[34] we allowed Stanolind, a lessee of a riparian owner, to diminish the flow of the natural stream as long as Stanolind left water sufficient for domestic use and for approximately 45 head of cattle. We quoted with approval from a Vermont decision:

"The fact that such orators [plaintiffs in chancery] were taking the water to their non-riparian lands did not per se make their use unreasonable. But that fact together with the size and character of the stream, the quantity of water appropriated, and all the circumstances and conditions, might make their use unreasonable. The stream might furnish enough to supply this unreasonable use of the defendants and the reasonable demands of the orators [plaintiffs in chancery], in which case the latter could not be heard to complain. The mere fact that the defendants reduce the natural flow of the stream would not be decisive. ..." [Emphasis added.]^[35]

We said that the accepted rule allows a riparian owner the right to make any use of water beneficial to himself as long as he does not substantially or materially injure those riparian owners downstream who have a corresponding right.^[36] In Baker v. Ellis,^[37] a case relied on by the trial court in holding that the natural flow doctrine controls the case at bar, we affirmed a decree granting a permanent injunction against the defendant's construction of a dam which threatened the supply of water to a downstream riparian owner. Though the court noted that the defendant was about to stop the stream "where the water, left alone, would run as it ought to run, and was used to run from time immemorial," we carefully added that the defendant could still properly use the water even impounding some as long as he does not cause substantial damage to the plaintiff.^[38]

Mindful of these decisions and of the co-existence of appropriative with riparian rights in this state since 1897, we hold that the modified common-law^[39] riparian right to the reasonable^[40] use of the stream is the controlling norm of law in Oklahoma.^[41] We further hold that, consistently *576 with the California Doctrine, the statutory right to appropriate stream water coexists with, but does not preempt or abrogate, the riparian owner's common-law right.

D. THE CONSTITUTIONAL QUESTION

The issue here is whether the legislature can validly abrogate the riparian owner's right to initiate non-domestic reasonable uses in stream water without affording compensation. Art. 2, § 24, Okl. Const. provides in part:

"Private property shall not be taken or damaged for public use without just compensation. Such compensation, irrespective of any benefit from any improvements proposed shall be ascertained by a board of commissioners of not less than three freeholders, in such a matter as may be prescribed by law."

Private property protected by Art. 2, § 24 includes "easements, personal property, and every valuable interest which can be enjoyed and recognized as property."^[42] Further, In Oklahoma Water Resources Board v. Central Oklahoma Master Conservancy District,^[43] we held:

"A `vested right' is the power to do certain actions or possess certain things lawfully, and is substantially a property right. It may be created by common law, by statute or by contract. Once created, it becomes absolute, and is protected from legislative invasion ..." [Emphasis added].

Therefore, the common-law riparian right to use stream water, as long as that use is reasonable, has been long recognized in Oklahoma law as a private property right.^[44]

The general rule is that the legislature may restrict the use of private property by exercise of its police power for the preservation of the public, health, morals, safety and general welfare without compensating the property owner.^[45] In Phillips Petroleum Co. v. Corporation Com'n^[46] this court defined the permissible exercise of police power:

"[T]he police power is usually exerted merely to regulate the use and enjoyment of property by the owner, or, if he is deprived of his property outright, it is not taken for public use, but rather destroyed in order to promote the general welfare. .. ."

Therefore, in C.C. Julian Oil & Royalties Co. v. Capshaw^[47] we declared that the legislature could regulate a landowner's use and enjoyment of natural resources to prevent waste and infringement on the rights of others. Thus, a statutory regulation of the methods to be used in extracting hydrocarbons was a constitutional exercise of police power where none of the hydrocarbons was taken for public use. Then, in Frost v. Ponca City^[48] we held that in the interest of health and safety, the city could exercise its police power to restrict the plaintiff's right to capture hydrocarbons *577 underlying his property, but the city could not remove the hydrocarbons and sell them without compensating the plaintiff.

We, therefore, hold that the 1963 water law amendments are fraught with a constitutional infirmity in that they abolish the right of riparian owners to assert their vested interest in the prospective reasonable use of the stream. Under the 1963 amendments, riparian owners stand on equal footing with appropriator; ownership of riparian land affords no right to the stream water except for limited domestic use.

This case must be remanded for the trial court to determine whether the appellee-riparian owners' claim to the use of the stream flow for the enhancement of the value of the riparian land for recreation, for the preservation of wildlife, for fighting grass fires, and for lowering the body temperature of their cattle on hot summer days is reasonable.

The OWRB argues the 1963 amendments are a permissible exercise of the police power just as a zoning ordinance would be. That contention is inapposite when, as here, the use of stream water is not just restricted but is taken for public use.

Although the 1963 water law amendments provided a mechanism for a riparian owner to "perfect" all beneficial uses initiated prior to the legislation, that mechanism falls short of protecting the riparian owner's common-law appurtenant right. The mechanism is constitutionally inadequate first of all because the full sweep of the riparian right is much broader than the validation mechanism could ever shield. The heart of the riparian right is the right to assert a use at any time as long as it does not harm another riparian who has a corresponding right. Further, yesterday's reasonable use by one riparian owner may become unreasonable tomorrow when a fellow riparian owner asserts a new or expanded use. After the 1963 amendments, the riparian owner who wants to expand a use or assert a new use may do so only as an appropriator. His use is not judged by its reasonableness but only by its priority in time.

Furthermore, the validation mechanism attempted to forever set in stone the maximum amount of stream water the landowner, as a riparian owner, can use. Any use asserted by the landowner, as an appropriator, is either denied because no water is available or is given a lower priority than all other uses, including those of appropriators who are non-riparian to the stream. It matters not that the riparian owner's use is reasonable when compared with prior uses. This result is antithetical to the very nature of the common-law riparian right, which places no stock in the fact of past use, present use, or even non-use.

The 1963 legislation is also constitutionally inadequate because it falls short of an express abrogation of a riparian owner's common-law right. We held in Ricks Exploration Co. v. Oklahoma Water Resources Board^[49] that public law will not be interpreted as legally destroying private rights by inference. Until the recent 1988 amendments to our water law, the riparian owner was never given express notice by the legislature that his use would be limited in the future to that validated under the 1963 amendments. By then, the time for "perfection" under the validation mechanism had passed.

In preserving today the riparian right from its infirm legislative abrogation, we do not disestablish the appropriative right. California and Nebraska, which still maintain the dual regime of water rights,^[50] protect appropriative rights, prior reasonable uses of the riparian owner and prospective reasonable uses of the riparian owner. In U.S. v. Gerlach Live Stock Co.^[51] the United States Supreme Court, interpreting California law held that the plaintiff's use of even the normal overflow of the stream for irrigation purposes was reasonable, and therefore, compensable.

*578 The asserted riparian use must, of course, be reasonable. Therefore, in a later case, Joslin v. Marin Municipal Water District,^[52] the California Supreme Court held that the plaintiffs' use of the normal flow of the stream for the purpose of accumulating rock, sand and gravel for their rock and gravel business was not a reasonable use. The court, which ruled that the plaintiffs had a compensable interest only in the reasonable use of the flow of the water, balanced the plaintiffs' use against the need to preserve the state's water supply and the constitutional mandate preventing waste and unreasonable use.

Upon remand, should the trial court find that any or all of the riparian owners' asserted uses of the stream for their claimed purposes is unreasonable, such uses do not fall under the mantle of constitutionally protected property rights. On the other hand, should the trial court find that an asserted riparian use of the stream is reasonable, the right to a flow sufficient to supply the riparian owners' reasonable use must be preserved in the owners.

On remand the trial court shall separately determine the reasonableness of each of the riparian owners' asserted uses, applying the factors discussed earlier.^[53] One use may be found reasonable while another is not. We make no conclusion as to the reasonableness of any of the riparian owners' asserted uses.

To assure that the state's resources are put to the most reasonable and beneficial use, we adopt the approach of the Supreme Court of Nebraska in Wasserburger v. Coffee.^[54]Wasserburger holds that the rights of the riparian owner and the appropriator are to be determined by relative reasonableness. On remand, the trial court shall balance the riparian owners' uses against those of the City, with due consideration to be given all the factors listed earlier in this opinion.

The OWRB shall approve the City's appropriation only if it finds there is surplus water after providing for 1) all prior appropriations; 2) all riparian uses perfected under the 1963 amendments; 3) all riparian domestic uses, 4) all riparian uses approved as reasonable on remand and 5) all anticipated in-basin needs.^[55] In its calculation, the OWRB must take into account the last riparian owner and the last appropriator on the stream and maintain the minimum flow^[56] necessary to allow for diversion by these users. We affirm the trial court's ruling that all downstream domestic uses below the junction of Buck and Boggy *579 Creeks and above its junction with Muddy Boggy Creek must be considered to determine the water available for appropriation.

E. GRANTING THE APPROPRIATION

The Consideration of Other Sources of Water

The next issue for review is whether the OWRB must consider the City's claim to groundwater when determining its need to appropriate stream water. Title 82 § 105.12(2) requires the OWRB to determine whether the applicant has a present or future need for the water.^[57] The trial court ruled the OWRB must consider the City's claim to groundwater sources in assessing whether the City indeed has a need for the water it seeks to appropriate. The 1988 amendments to our statutory water law address this issue by adding the following clarifying language to 82 O.S. 1981 § 105.12:

A. After the hearing on the application the Board shall determine from the evidence presented whether:

1. There is unappropriated water available in the amount applied for;

2. The applicant has a present or future need for the water and the use to which applicant intends to put the water is a beneficial use; and. In making this determination, the Board shall consider the availability of all stream water sources and such other relevant matters as the Board deems appropriate, and may consider the availability of groundwater as an alternative source; [amendments in italics; deletions noted]^[58]

The title of the Act that embodies the 1988 amendments expresses a purpose to clarify the language of the statute. We hold that by the language added to 82 O.S. 1981 § 105.12(2) the legislature intended to explain the 1963 amendments rather than to amend them. In so doing the legislature expressed its intent to apply the added language in § 105.12 retroactively from the effective date of the 1963 amendments.^[59]

Furthermore, we held in American Ins. Ass'n v. Industrial Com'n^[60] that:

"[u]nless there be present on review some property or liberty interest which requires that we apply to the accrued or vested rights in controversy the law in force at a fixed point in time that is anterior to its most recent change, an amendment of controlling statutory law between nisi prius and appellate decisions compels the appellate court to apply the latest version of the pertinent law."^[61]

Because the legislature has intervened following our initial consideration of this case and before our final disposition and because the legislature expressed an intent to *580 clarify the 1963 amendments and to apply the language added by 82 O.S.Supp. 1988 § 105.12, we are now compelled to retroactively apply the legislature's latest version of the pertinent law. No vested property or liberty interest requires an opposite conclusion.

Conforming to the legislative clarification of § 105.12(2), we reverse the trial court's holding that the OWRB must consider all sources of water claimed by the City in determining the City's need for stream water. Pursuant to the statute, the OWRB must consider the availability of other stream water sources but, in its discretion, may consider the availability of groundwater sources in determining the City's present and future need for stream water. The legislature's interpretation of § 105.12(2)^[62] is consistent with the state's policy recognizing groundwater as a limited and dwindling supply which should not be depleted needlessly.^[63]

Of course, an initial finding by the OWRB that allowing the appropriation would impair vested appropriative or riparian uses or prejudice future in-basin needs, as revealed by the last five-year study, makes the availability of other sources a moot issue. The OWRB must then deny the application regardless of whether the City has other available water sources. On the other hand, if there is surplus stream water available and if the City will apply it to a beneficial use, granting the appropriation may provide the applicant with the most economic water source and prevent the escape of surplus stream water into an adjacent state.^[64]

Some, if not all, appellee-riparian owners have perfected appropriative rights in the same stream in which they are now claiming riparian rights. For almost 100 years, Oklahoma law has permitted riparian owners to "have their cake and eat it too". Under their riparian right riparian owners may assert a reasonable use any time and obtain a priority over pre-existing uses — both riparian and appropriative. Under the rubric of appropriative rights the riparian owners have a priority which can never be disestablished by later appropriations. We, therefore, hold that in the future a riparian owner who applies for an appropriation in stream water must be deemed to have voluntarily relinquished his riparian rights in that stream water, except for those preserved under the statute for domestic uses. Because of its significant constitutional implication, the principle of relinquishment we announce today shall be applied prospectively from the date mandate herein is issued.^[65]

F. RECALL OF THE APPROPRIATION

The final issue for our resolution is whether 82 O.S. § 105.12(4) requires the OWRB to grant an out-of-basin appropriation subject to recall (permanent divestment) by in-basin appropriators. This issue implicates both constitutional considerations and statutory interpretation. The maxim "first in time, first in right"^[66] is a fundamental feature of the common-law appropriation doctrine codified at 82 O.S. 1981 § 105.2(B). The senior appropriator has priority over the junior appropriator when water supply is insufficient for all. In times of shortage the junior appropriator must stop diverting all or a portion of his appropriated amount until the supply again exceeds that required by senior appropriators. Though the appropriation is considered a vested property right and is not subject to permanent divestment except *581 for nonuse,^[67] that right is always subject to the rights of senior appropriators. The junior appropriator takes with notice of those prior rights. This state's appropriation statutes give the appropriator the right to bring suit when his right to use water is wrongfully impaired by another.^[68] The OWRB may also institute legal proceedings to enjoin the wrongful diversion and file criminal complaints against the wrongdoers.^[69] Under the statute, the only instance when an appropriator is subject to permanent divestment is for failure to beneficially use the water.^[70]

In addition to this first-in-time, first-in-right limitation on all appropriations, the out-of-basin appropriator is faced with Oklahoma's statutory preference for in-basin use:

Only excess and surplus water should be utilized outside of the areas of origin and citizens within the areas of origin have a prior right to water originating therein to the extent that it may be required for beneficial use therein;^[71]

The OWRB is directed by 82 O.S. 1981 § 105.12^[72] to review the needs within the area of origin every five years. Applicants within the stream system shall have all of the water required to supply their beneficial needs revealed by the study. The trial court held that, according to the statute's declared preference for in-basin use, all of the City's appropriation which is to be used outside the basin of origin (80%) is subject to recall by users within the basin of origin. Subsequently, the legislature clarified its declared preference for in-basin use and limited its sweep as follows: the preference applies only 1) when out-of-basin and inbasin applications for an appropriation are pending before the OWRB at the same time and 2) when future in-basin needs are revealed by the last five-year review made prior to the granting of an application.^[73] The 1988 clarifying language expressly provides that the five-year review is not to be used to reduce a previously authorized appropriation.^[74]

Therefore, in keeping with the most recent text of § 105.12(4)^[75] and in keeping with the common-law prior appropriations doctrine, we reverse the ruling of the trial court and hold that any appropriation granted to the City on remand is to be treated as a vested right that is not subject to permanent divestment by subsequent inbasin *582 appropriators. The latter appropriators take subject to temporary divestment by all prior appropriators, even those outside the basin of origin. Likewise, the City's appropriation is subject to temporary divestment by senior appropriators, in or out of the basin of origin, in times of shortage.

Notwithstanding the statutory rule that controls in-stream appropriators, all riparian owners enjoy a vested interest in the prospective reasonable use of the stream, which interest is not subject to prior appropriations. To the extent that § 105.12 fails to preserve that interest, we hold it violative of Art. 2, § 24, Okl. Const. Should a riparian owner assert a vested right to initiate a reasonable use of the stream and should the water in the stream be insufficient to supply that owner's reasonable use, we hold that the appropriator with the last priority must either release water into the stream sufficient to meet the riparian owner's reasonable use or stop diverting an amount sufficient to supply the riparian owner's reasonable use until there is water sufficient to satisfy both interests. This temporary divestment is similar to that required under the appropriation doctrine when a shortage of water impairs a senior appropriation. The described scenario should indeed be a rare occurrence, except perhaps in times of severe drought, if the OWRB conducts a thorough study of future in-basin needs every five years and denies all applications for appropriations which threaten those needs.

Nothing in today's pronouncement precludes the OWRB from granting, as authorized by 82 O.S. 1981 § 105.13, seasonable permits allowing increased use and storage of stream water in times of heavy runoff during rainy seasons.

TRIAL COURT'S ORDER ON APPEAL FROM THE AGENCY IS AFFIRMED IN PART AND REVERSED IN PART; CAUSE REMANDED WITH DIRECTIONS.

HODGES, C.J., and ALMA WILSON, KAUGER and WATT, JJ., concur in the opinion by OPALA, J.

LAVENDER, V.C.J., concurs in part and dissents in part by opinion.

REIF, Special Justice, sitting by designation in lieu of SIMMS, J., who disqualified, concurs in part and dissents in part by opinion.

HARGRAVE, J., dissents by opinion.

SUMMERS, J., concurs in part and dissents in part.

HODGES, C.J., and OPALA, ALMA WILSON, KAUGER and WATT, JJ., concur in rehearing's denial.

LAVENDER, V.C.J., HARGRAVE and SUMMERS, JJ., and REIF, Special Justice, by designation in lieu of SIMMS, J., who disqualified, dissent from rehearing's denial.

LAVENDER, Vice Chief Justice, concurring in part; dissenting in part:

I must respectfully dissent from that part of the majority opinion holding the 1963 legislative amendments to our State's stream water law unconstitutional under the guise the amendments effected a taking of property without just compensation in violation of OKLA. CONST. art. 2, § 24. In reaching this result the majority makes several errors.

Initially, it misperceives that future, unquantified use of stream water by a riparian is a vested property right that can only be limited or modified pursuant to judicially mandated common law factors that were generally used to decide piecemeal litigation between competing riparians in water use disputes. Secondly, it misinterprets the plain and unambiguous legislation at issue and it fails to recognize that even assuming a vested property right is at issue, such rights in natural resources like water, may be subject to reasonable limitations or even forfeiture for failure to put the resource to beneficial use. Thirdly, its analysis of the law as to what constitutes a taking of private property requiring just compensation is flawed. In my view the *583 majority errs in such regard by failing to view the legislation as akin to zoning regulation, which although may limit a riparian's open-ended common law right to make use of the water to benefit his land and thereby effect the value of his land, does not deprive him of all economic use of his land or absolutely deprive him of water. The lack of water to a riparian, if it occurs, is caused by his own neglect or inaction by years of failure either to put the water to beneficial use or failure to gain an appropriation permit from the Oklahoma Water Resources Board (OWRB) for uses being made prior to passage of the 1963 amendments or uses made or sought to be made between passage of the amendments and the City of Ada's appropriation at issue here. This mistake of the majority is particularly egregious because it wholly ignores the virtually admitted fact that neither riparians or appropriators own the water they are being allowed to use. All of the people in this State own the water and that ownership interest by the legislation before us is merely being channeled by the Legislature, for the benefit of those owners (i.e. the people), to those uses deemed wise.

The majority has failed to consider persuasive case law from the highest courts of other jurisdictions upholding analogous legislation over similar attacks and pronouncements of the United States Supreme Court which lead me to conclude the legislation on its face is constitutional. The majority finally seems to confuse public fundamental and preeminent rights in the streams of this State, protected through the public trust doctrine, as being the private property of landowners (riparians) owning land adjacent to the stream waters in Oklahoma.

In place of the statutory scheme drafted by the Legislature after years of study and debate the majority acts as a super-legislature by rewriting the water law of this State in accord with its views of prudent public policy, something neither this Court or any court has the power to do.^[1] The foundation of this judicial "legislation", relying as it does on the so-called California Doctrine, is illusory at best because the majority ignores pronouncements from the California Supreme Court which has itself recognized the common law doctrine of unquantified future riparian use of stream water is not a vested right, even in the face of a California constitutional provision specifically interpreted to protect it, when it may impair the promotion of reasonable and beneficial uses of state waters and, in effect, constitute waste of the resource.^[2]

Instead of striking down the 1963 amendments I would hold the amendments to 60 O.S. 1961, § 60 and the comprehensive stream water laws enacted contemporaneously therewith constitutional and that such laws did not facially constitute a taking of private property of riparian landowners without just compensation. I believe the legislation was enacted by the Legislature in the exercise of its police power and, at most, the amendments placed certain lawful limitations on the doctrine of riparian rights or simply defined what reasonable use consists of in the case of a riparian landowner.

In order to understand the erroneous nature of the majority opinion it is first necessary to understand the "property" right of riparians it purportedly protects and the central rationale given for holding the 1963 water law amendments unconstitutional. The "property" interest is supposedly the prospective or future reasonable use of stream water. The opinion posits that this unquantified prospective or future use is a *584 vested right. Although the majority discusses preexisting water uses by riparians (i.e. uses initiated prior to passage of the 1963 amendments), as I read the opinion, it is the effect the legislation had on future use which is the basis for finding constitutional infirmity. In my view such future use was never a vested property interest inuring to the benefit of a riparian such that if it was changed or modified as accomplished by the 1963 stream water laws just compensation was due for a taking of property. Furthermore, even assuming future use could be considered a vested property interest under Oklahoma law prior to passage of the 1963 amendments the Legislature had the authority, without providing a mechanism for compensation, to provide that the unexercised "right" to use water at some unspecified time in the future could be limited to domestic use because continuous nonuse of water was determined by the Legislature to be wasteful and injurious to a comprehensive State plan regulating the beneficial use of such a valuable resource and, thus, subject to forfeiture or limited to those uses, in addition to domestic use, for which an appropriation was sought and granted by the OWRB.

Appellees have asserted in this case essentially two bases for their supposed property right. They assert this interest is to have some minimal flow (or the natural flow) in the stream system at issue or to be allowed, without compliance or regard to the statutory scheme, to initiate a nondomestic use of the water at some unspecified time in the future. The majority correctly determines that the natural flow arguments of Appellees are meritless under our case law, but then turns around and gives to riparians the opportunity to gain this minimal or natural flow under the auspices they have a protectible property right to make a reasonable use of the stream in the future. What the majority has failed to recognize is that the Legislature had the authority to modify or limit this common law doctrine without running afoul of the just compensation provision of our Constitution or the United States Constitution.^[3] The majority also fails to understand the import of the reasonable use doctrine as it existed in Oklahoma prior to passage of the 1963 stream water law amendments and that the State for the benefit of all the people owned the waters at issue in this case and had plenary control over their disposition. In my view only preexisting uses (i.e. uses initiated prior to passage of the amendments and subject to validation thereunder) can be said to be property in any real or actual sense. Such uses the majority admits were subject to validation under the 1963 amendments. As to any common law claim to use an unquantified amount of water in the future such open-ended claim was lost or forfeited because it was determined to be wasteful by the Legislature and was properly limited to domestic use. Furthermore, riparians, just as other potential future water users, may obtain their future needs of water in addition to domestic use by applying for an appropriation under our water laws. If the water is not then available it is their own inaction or neglect which deprives them of water and not action of the State under the involved legislation. In effect, all the legislation at issue did was to put water users in this State on an equal footing (except for a statutory preference in favor of riparian domestic use) and provide a statewide unitary system for the acquisition of water rights. To further demonstrate the errors made by the majority I will next outline the history of water law in the Western United States and in Oklahoma specifically and then set forth a detailed analysis of the 1963 amendments.

Currently there are three major systems of water rights acquisition in the world. These are the riparian rights system, the prior appropriation system and the system of administrative disposition of water use rights.^[4] The prior appropriation system in *585 its present form is mainly managed as an appropriation-permit system and is, thus, in actuality a type of administrative disposition system.^[5] This case is concerned with the riparian and appropriation-permit systems and their status in Oklahoma both historically and today.

The appropriation doctrine is prevalent in the Western United States and it is generally recognized its impetus in the region can be traced to the practices and customs of gold miners in California in the midnineteenth century.^[6] In that there was little or no organized government in the early years of the California gold rush the miners implemented a system of water rights roughly parallel to rules utilized to govern acquisition and holding of mining claims.^[7] The principle was based on priority of discovery and diligence in working the mining claim and consequently priority for one who began work to utilize the water in working the claim, assuming reasonable diligence in putting the water to actual use. Practically, the prevalence of the doctrine in the Western United States is due to the relative arid nature of the region and a desire to quantify water rights in the hopes of better controlling what has been thought to be scarce water resources.

A central feature of the doctrine is priority of right to the use of a definite amount of water.^[8] Our early case law acknowledged the general law in this area as "first in time, first in right", in other words, the one first putting the water to use or who first began work to divert the water from a stream, assuming reasonable diligence in putting it to actual use, had a better right to the supply of water so used over subsequent in time users when shortage or insufficient supply existed.^[9] It was not necessary that an appropriator own land adjacent to the stream.

The riparian doctrine has historically been characterized in two main ways. The majority correctly names these characterizations as the natural flow doctrine and the reasonable use doctrine. Generally, the natural flow doctrine was that each owner of land on a run