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 *583majority 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 *584vested 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 non-domestic 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 *585its 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 mid-nineteenth 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 running stream had a right to the ordinary flow of the water running along or over his land and the water could be taken only for domestic purposes, e.g. for family use, livestock and gardening.10 The doctrine is commonly referred to as the English rule and its primary focus is in maintaining the stream in its natural state. The doctrine was early modified by the reasonable use doctrine or American rule for the main reason it prohibited or severely restricted many uses to which a stream could be put, particularly heavily consumptive uses, such as irrigation. It also gave an unfair advantage to those at the mouths of streams because such landowners were practically the only ones that could utilize the water for other than domestic purposes.
The central theme of the reasonable use doctrine was that a riparian could make a reasonable use of the water for other than domestic purposes as long as the use did not injure another riparian owner.11 Neither under this theory or the natural flow doctrine was the landowner considered to own the water. His rights in it were at most a usufructuary interest, in other words he had the right to use the water while it was passing over or next to his land.12
In Oklahoma both the appropriation and riparian doctrines were partially recognized *586early in our development toward statehood. In 1890 the first Legislature of the Territory of Oklahoma enacted a provision adopted from the Dakota Territory dealing with the issue of water rights. The provision provided as follows:
The owner of the 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, (emphasis added)13
This provision remained unchanged through statehood until its modification by the 1963 amendments, particularly the changes embodied in 60 O.S.Supp.1963, § 60. As I view the provision it recognized by the emphasized portion that a riparian, although granted an ownership interest in water upon his land not forming a definite stream, did not own any of the water forming a definite stream. Consistent with the common law nature of the riparian doctrine the riparian’s interest was recognized as usufructuary, i.e. a right to use.
The first legislative embodiment of the appropriation doctrine was passed in 1897 by the Territorial Legislature.14 At such point in time present day Oklahoma was essentially divided into two halves, a western part, Oklahoma Territory and an eastern part, Indian Territory.15 The 1897 law allowed for appropriation of the ordinary flow or under flow of every running stream, flowing river and the storm or rain waters thereof within those portions of Oklahoma Territory wherein irrigation could be beneficially utilized. These waters were declared in the first section of the statutory scheme to be the property of the public. Protection was afforded to riparians to the extent such flows were not to be diverted without the consent of the riparian owner, except by condemnation as provided in the statutory scheme.16 The legislation further provided that even after an appropriation was granted the riparian owner could still use the water for domestic purposes.17
A more comprehensive pre-statehood statutory scheme was passed in 1905 and the provision protecting the riparian right to the ordinary flow of any stream was not contained in the legislation.18 By this legislation the Territorial Legislature recognized that “[b]eneficial use shall be the basis, the measure, and the limit of the right to the use of water....” 19 As I view this early pre-statehood legislation the most important principle espoused therein is it recognized, consistent with the general doctrine in the Western States, that beneficial use would be the overriding factor in determining who had the right to the use of the water.
The next legislation in relation to appropriation was promulgated in 1908 and it was the first passed by the State Legislature to be effective in all of Oklahoma, in other words what had formerly been divided into Indian and Oklahoma Territories.20 *587The legislation, like its 1905 counterpart, recognized the overriding principle that beneficial use would be the overriding factor in who had the right to use water. In 1909 another provision concerning appropriation was passed which was a mixture of the 1897 and 1905 schemes.21 The 1910 Revised Laws of Oklahoma contain provisions only of the 1905 territorial scheme.22 In 1925 the Legislature promulgated a provision recognizing the priority of all beneficial uses of water which had been initiated prior to statehood and, again, that beneficial use would be the basis, the measure, and the limit to the use of water.23
In addition to the legislative embodiments of water law outlined above this Court has decided numerous cases between riparian landowners or those claiming under them. Although as noted the majority correctly posits that this Court recognized the reasonable use doctrine in deciding these cases, rather than the natural flow doctrine as argued by Appellees, the majority fails to recognize the true effect of these decisions. Rather than exhibiting some protection for an open-ended “right” to make a use of an unquantified amount of water at an unspecified time in the future, it is my view the cases when viewed in proper perspective only stand for the proposition that a riparian, as against a competing riparian, had to show some material or substantial impairment of his own right to use water or imminent threat to such right before the judicial machinery would supply relief for any interference. In other words, only interference with use of the water would entitle the riparian to judicial intervention and protection was never afforded for any future or prospective use upon which the majority bases its constitutional decision.24
Other cases such as Markwardt v. City of Guthrie,25 protected a lower riparian owner when a city used a waterway to discharge its sewage therein. Markwardt allowed recovery for damages in a nuisance action against the city when pollution caused the water to be unusable. The plaintiff in said case had diverted water from the stream to build a reservoir which was used to water livestock and irrigate crops. The reservoir also had an abundance of fish. The plaintiff sold butter, milk, vegetables and fish, all a result of water used from the reservoir which had been diverted from the stream. In yet other cases a riparian owner was allowed to recover damages when his land or crops were damaged by a lower riparian owner damming up a water course and thereby throwing the water in excessive amounts upon the lands of an upper riparian.26 There is also the case of Atchison, T. & S. F. Ry. Co. v. Hadley,27 purportedly relied on by the majority as a case exhibiting Oklahoma’s long recognized common law riparian right as a private property right, which allowed an action for damages when approximately fourteen acres of plaintiffs land had been washed away by water thrown upon the land as a result of defendant railroad building an embankment which changed the channel and flow of the South Canadian river.
*588What is seen by these cases is that under the common law of Oklahoma the right we were protecting was the right of a riparian landowner to use the water for various beneficial purposes which he was making of the stream or the right of the riparian owner to have his land or use of that land (e.g. crops) protected from interference by a misuse or excessive use of the water course by another. I do not read them-as elevating to the status of vested property right the ability of a riparian to make a use of some unquantified amount of water at some unspecified time in the future, which could never be limited or restricted (or abrogated as wrongly asserted by the majority) by the Legislature and I think the majority is wrong in so concluding. It must next be determined what the legislation did in regard to a riparian owner to see whether the legislation on its face took anything away from them for which compensation must be paid.
The legislation at issue had as its goal the accomplishment of one central purpose. That purpose was to provide a statewide unitary scheme for the acquisition of water rights.28 The scheme chosen by the legislature was generally along the lines of the prior appropriation system, but it did not simply ignore the fate of those who had been entitled to use water as riparians, as will be shown.
Riparians, as noted previously herein and in the majority opinion, were given a statutory preference to use water from a stream for domestic purposes. These purposes could include general household purposes, for farm and domestic animals up to the normal grazing capacity of the land and for the irrigation of land not exceeding three acres for the watering of gardens, orchards and lawns. It was also provided that water could be stored for such purposes in an amount not to exceed two years supply.29 A detailed scheme was also contained in the legislation setting forth priorities based on time of initiation of usage.30 Preexisting beneficial uses, both those of a riparian and appropriator, were subject to protection. The majority admits the legislation so provided. Any water claimant was given a minimum of one year to establish their priority, and such time limit in the discretion of the OWRB could be extended.31
An elaborate procedure was set forth mandating that the OWRB conduct surveys, collect data, and gather information to make determinations of all persons using water throughout the State so that such persons could participate in public hearings to determine priorities and rights to the beneficial use of water.32 Notification of any hearing date by certified or registered mail was required to those persons determined by the OWRB as being users of water.33 Publication notice in a newspaper of general circulation in each county of the stream system for which rights were to be determined was required for anyone else who might claim the right to use water or might otherwise be interested in the matter.34 Prior uses, when determined and recognized by the OWRB, were effectively turned into valid appropriations. A right to appeal any decision of the OWRB to a state district court was afforded, with an ultimate appeal to this *589Court.35 Any potential water user who sought to initiate a use after passage of the legislation, riparian or not, was required to apply to the OWRB for a permit prior to use.
Certain things are undeniably clear from this legislation. By the amendments the previously existing open-ended and unexer-cised common law “right” to reasonable future use espoused by the majority concerning riparian water rights was limited to a right of domestic use. Further, all waters entering a definite stream were subject to appropriation, not riparian water uses under the common law doctrine. For riparians then possessing and exercising an existing riparian water right (i.e. the riparian was actually using the water reasonably or beneficially) the amendments provided a mechanism for the recognition, protection and continued validity of such uses and turned those existing uses into valid appropriations. Finally, riparians could gain a right to use water in the future by a grant of an appropriation from the OWRB. All that was actually lost to riparians was the open-ended, unused or unexercised entitlement under the common law factors enunciated by the majority opinion. I differ from the majority because I see no facial constitutional infirmity in these changes accomplished by the 1963 amendments as it does.
The United States Supreme Court .has noted on a number of occasions that a state may abandon the common law doctrine of riparian rights in favor of an appropriation system. In the case of United States v. Rio Grande36 it stated, “[A]s to every stream within its dominion a State may change this common law rule and permit the appropriation of the flowing waters for such purposes as it deems wise.” Cases such as Rio Grande point out the plenary authority a state has over the streams and rivers within its borders like those at issue in this case. This Court itself has recognized the plenary power of the State of Oklahoma in a case mistakenly relied on by the majority in support of its just compensation position here. In Oklahoma Water Resources Board v. Central Master Conservancy District37 we stated, “[t]he state is without authority to transfer one man’s property to another, but its power to control unappropriated public waters is plenary. Definite nonnavigable streams are public waters. The state may either reserve to itself or grant to others its right to utilize these streams for beneficial purposes.” We also recognized there that a riparian had absolutely no ownership interest in the water forming a definite stream.38
In yet another United States Supreme Court case the public right in the waters of a state were deemed paramount over the just compensation arguments of a New Jersey riparian owner who sought to take water from the Passaic River and sell it to New York. The Supreme Court stated:
[I]t appears to us few public interests are more obvious, indisputable and independent of particular theory than the interest of the public of a State to maintain the rivers that are wholly within it substantially undiminished, except by such drafts upon them as the guardian of the public welfare may permit for the purpose of turning them to a more perfect use. This public interest is omnipresent wherever there is a State, and grows more pressing as population grows. It is fundamental, and we are of opinion that the private property of riparian proprietors cannot be sup*590posed to have deeper roots, (emphasis added)39
With these cases in mind what vested property interest did the 1963 amendments take from riparians? The majority says the ability to demand a reasonable use of the stream in the future (unencumbered by compliance with our State’s water laws) under common law or judicially imposed factors that courts over the years had utilized to decide piecemeal disputes involving riparians or their privies. In essence, the majority indicates it relies on the so-called California Doctrine for its position. It, however, nowhere discusses recent authority from California that sheds serious doubt on its analysis. In the case of In Re Waters of Long Valley Creek Stream System 40 the California Supreme Court was not so generous. There it held that the state, through its water board, may subordinate any future unexercised riparian right below any appropriation awarded prior to user by the riparian when conducting stream wide adjudications because doing so will promote the state’s interest in fostering the most reasonable and beneficial uses of scarce water resources.41 This view was recently reaffirmed in a unanimous decision by the California Supreme Court.42 In my view our Legislature has accomplished nothing more than that approved by the California Supreme Court via the legislation at issue here and its limitations and modifications in regard to the common law reasonable use doctrine.
The majority also relies on the United States Supreme Court case of United States v. Gerlach Livestock Co.43 to support its view that the common law reasonable use doctrine is constitutionally protected. Its reliance on this case is misplaced. In the first instance, Gerlach relied on a federal statutory scheme (the Reclamation Act of 1902, 43 U.S.C. § 371 et seq.) as its basis for holding compensation was required to be paid to riparian landowners which were benefited from the seasonal overflows of the San Joaquin River when the construction of the Friant Dam would cause the loss of this seasonable overflow that the landowners had been utilizing upon their grasslands. Secondly, California had a constitutional provision protecting riparian rights to water and the Supreme Court determined under California law the use of the waters on riparian grassland to enhance its productivity was a private right.44 Again, the right protected, even in such case, was an existing use of the water in the stream.
In the instant case the majority does not rely for its holding of constitutional infirmity on the loss of any preexisting uses ripar-ians were making of the stream prior to passage of the 1963 amendments. It realizes it cannot do so in this facial attack upon the legislation because the amendments provided a mechanism for protection of these uses. Instead it says riparians have a right to insist that things remain as they were under the common law in regard to future use. Other states have concluded differently.
The South Dakota Supreme Court in the case of Belle Fourche Irrigation District v. Smiley45 rejected a similar argument to that raised by Appellees here and approved *591of by the majority. Said case involved a challenge to that state’s comprehensive state water law of 1955 by a riparian owner who asserted he had a vested right to use or divert water from the Belle Fourche River for domestic and irrigation purposes by virtue of his ownership of land contiguous to the river. The riparian claimed that this right became an inseparable incident of his land when it was settled, that use did not create it and disuse could not destroy it, and to deny him said right deprived him of property without just compensation.46 In rejecting the argument the South Dakota Supreme Court effectively determined that the legislature had the authority to define a vested right in water as that being utilized for beneficial purposes prior to passage of its state water law and that the Legislature of South Dakota could limit the rights of riparians to domestic use or to those uses granted by appropriation under their statutory scheme.47
Another court upholding legislation of a similar nature was the Texas Supreme Court in In re Adjudication of the Water Rights of the Upper Guadalupe Segment of the Guadalupe River Basin.48 In pertinent part the legislation at issue in the Texas case provided that water claims would only be recognized to the extent of the maximum actual application of water to beneficial use without waste during any calendar year from 1963 to 1967.49 The legislation had been passed in 1967 to clear up the confusion and chaotic nature of the water law in Texas, which like Oklahoma had in place a dual system recognizing both the riparian and appropriation doctrines.50 Even though, as distinguished from the Belle Fourche case, the Texas court acknowledged that riparians who acquired their land before a certain date had a vested right to the use of non-flood waters, the court still upheld the legislation at issue in part because it recognized that what the riparians had was only a right to use what the state owned, i.e. the water.51 The court determined that such a right, like the appropriator’s right, was a right to use the resource beneficially, not to waste it.52
The court further relied on Texaco, Inc. v. Short,53 where the United States Supreme Court upheld the Indiana Dormant Mineral Act which provided that severed mineral interests not used for a period of twenty years automatically lapsed and reverted to the current surface owner, unless certain procedural steps were taken. In said case the Supreme Court stated:
We have concluded that the State may treat a mineral interest that has not been used for twenty years and for which no statement of claim has been filed as abandoned; it follows that, after abandonment, the former owner retains no interest for which he may claim compensation. It is the owner’s failure to make any use of the property — and not action of the State — that causes the lapse of the property right; there is no “taking” that requires compensation. The requirement that an owner of a property interest that has not been used for twenty years must come forward and file a current statement of claim is not itself a “taking”.54
Thus, even if it be assumed the majority is correct that the riparian had a protectible property interest to some unquantified right to make use of the water at some unspecified time in the future, this common law right could be lost or forfeited by non-use or, at least, limited to domestic use and appropriative uses granted by the OWRB as sought to be accomplished by the legis*592lation under review.55 To rule otherwise simply places a common law doctrine as an impenetrable barrier to efficient management of a natural resource never deemed to be owned by private landowners.
The majority further appears to say in part that the legislation on its face is unconstitutional because it did not provide express notice that a riparian would be limited in the future to domestic use and additional future uses only where an appropriation was sought and granted by the OWRB. The position of the majority in such regard is simply untenable under the clear language of the 1963 legislation. First off, Section 1 of the 1963 legislation (60 O.S.Supp.1963, § 60) and Section 2 (82 O.S.Supp.1963, § 1-A) unequivocally limited the riparian to domestic use in express terms. Section 60 provided in relevant part as follows:
Water running in a definite stream, formed by nature over or under the surface, may be used by [the riparian] for domestic purposes as defined in [82 O.S.Supp.1963, § 1-A] 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.... (emphasis added)
Next § l-A(a) set forth in pertinent part: Beneficial use shall be the basis, the measure and the limit of the right to the use of water; provided, that domestic use shall not be subject to the provisions of this Title, (emphasis added)
Immediately following § l-A(a) was subsection l-A(b) which provided in part as follows:
Priority in time shall give the better right. From and after the effective date of this Act, the following priorities and no others shall exist: _(emphasis added)
Finally, 82 O.S.Supp.1963, § 21 informed potential future water users that all such persons would have to obtain a permit for an appropriation from the OWRB before using water from a stream. Section 21 provided in pertinent part:
Any person, firm, corporation, State or Federal Governmental Agency or subdivision thereof, intending to acquire the right to the beneficial use of water, shall, before commencing any construction for such purposes, or before taking the same from any constructed works, make an application to the [OWRB] for a permit to appropriate in the form required by the rules and regulations established by the [Board].
It is beyond question these provisions expressly notified riparians future use would be limited to domestic use and any future use beyond this would be limited to those uses for which a permit was sought and granted by the OWRB. The decision of the majority in ruling otherwise simply ignores the express language of the legislation before us.
*593Any uses then that the majority says must be subject to the common law doctrine of reasonable use (e.g. recreation, fighting grass fires and use to water livestock) and the judicially imposed balancing of factors should have been the subject of an application for an appropriation before the OWRB. If the riparians claiming such use would have filed an application for these uses at any time prior to the City’s requested appropriation these uses would presumably have been protected. Further, if some or all of them were uses preexisting passage of the legislation the legislation on its face, as the majority admits, provided a mechanism to validate the uses as appropriations.56 Thus, in my view the language gave express notice that future use of water would be limited to riparian domestic use and appropriations granted by the OWRB.
The majority further fails in its analysis in the area of just compensation law. It relies on the case of Frost v. Ponca City57 which ruled although a city may exercise its police power to restrict a landowner’s right to capture hydrocarbons underlying his property in the interest of health and safety, if a city (or a public entity) itself removes the hydrocarbons and sells them the private landowner must be compensated. The majority fails to see at least two significant distinguishing factors between the situation involved in Frost and that facing us today. One, Frost relied on the fact hydrocarbons, such as oil and gas underlying a landowner’s property, were subject to the law of capture, i.e. the landowner had the exclusive right to drill for, produce, or otherwise gain possession of such substances and when reduced to actual possession, the landowner obtained an absolute ownership interest in the substance.58 After the ownership interest was established the landowner could sell the hydrocarbons. Riparians were never deemed to have such exclusive rights in regard to stream water as shown above and the majority admits this.
Secondly, in Frost the landowners were totally restricted from removing the hydrocarbons themselves or reducing them to actual possession under the law of capture. Here Appellee riparians are not totally restricted from gaining the use of stream water in the future. The only requirement is that they apply for an appropriation permit. Of course they also may use the water for domestic purposes without a permit and the legislation provided an opportunity to protect preexisting uses. No State or public law prohibits their use of stream water, but only inaction on their part. In view of these differences it is inapposite for the majority to rely on Frost.
Instead of placing unwarranted reliance on Frost to strike down the legislation under review I would uphold it by ruling it is akin to zoning regulations which have long been upheld by the courts.
When one properly determines riparians have no property right to insist that the law remain as it was under the common law the attack on the amendments is nothing more than a facial assault that the amendments have an adverse impact on riparian land values and detrimentally effect the ability of riparians to use stream water in connection with their land. ■ I believe such attack is without merit, although it does point out it is use of the water upon the land or, at least, in relation to the *594land that is the property interest potentially affected. In my view, when the constitutional attack is analyzed in proper perspective the just compensation challenge must fail in regard to any facial attack on the legislation.
The United States Supreme Court has long recognized that land use regulations normally do not effect a taking of property as long as the regulations at issue substantially advance legitimate state interests and do not deny a landowner economically viable use of his land.59 Noone argues here, including the majority, that the statutory scheme under review does not substantially advance legitimate state interests. The State interests advanced are numerous. Among them are direct promotion of the efficient management of our State’s water resources by preventing waste. It provides a semblance of certainty in the area of water rights and distributes this valuable resource which is owned by all the public in response to demonstrated need. Therefore, the only real question in the taking context is whether the legislation has deprived riparians of the economically viable use of their land. I do not think it has nor from my review of the record herein do I read Appellees submissions to assert otherwise.
Nowhere is there evidence in this record that the legislation itself has rendered the use of riparian land economically unviable. Riparians are not estopped from using their land for any purpose or gaining water rights in connection therewith as specified above. The most that could be said from this record is that Appellees argue that if the City is granted the appropriation at issue the entire stream system will be dried up below the point of diversion on Byrds Mill Spring. Even if such were the case, which it is not,60 this alone would not render the legislation facially invalid under either the Oklahoma Constitution (as the majority rules) or United States Constitution just compensation clauses. If valid at all such an argument would be an as applied attack which would have to be brought via an inverse condemnation proceeding, rather than from an OWRB administrative order.61 Such an as applied *595attack is not before us at this time and we, thus, have no occasion to reach the issue. However, if it was properly before us, in my view, in the normal situation it would not be application of the legislation which could be said to have rendered use of the land economically unviable (if such were adequately proven), but the failure of ripar-ians to gain an appropriation permit under the Act, i.e. the failure of riparians to use the water beneficially or to protect any preexisting uses. In sum, I would hold the legislation on its face did not constitute a taking of private property for which compensation is required just as land use regulation does not constitute a taking of private property when the owner is not denied economically viable use of his land.
Although not discussed in great detail by the majority I am of the further opinion that the majority confuses certain public rights in our streams as being exclusive private property rights of riparians. I come to this conclusion because of the majority’s assertion that, if under its common law balancing test protection of wildlife is deemed a reasonable use of the stream and the City or other public entity wants water which will detrimentally affect wildlife, ri-parians must be compensated for this loss of wildlife.62 Wildlife is not the private property of riparians or any other landowner. Oklahoma law specifically indicates that “[a] 11 wildlife found in this state is the property of the state.” 29 O.S.1981, § 7-204. See also Collopy v. Wildlife Commission, 625 P.2d 994 (Colo.1981). Thus, I do not believe riparians have any right to demand compensation for loss of wildlife which in no sense is deemed to be their private property. The mistake of the majority does, however, point up an evolving doctrine in the area of the law known as the public trust doctrine which I will briefly discuss.
Generally the public trust doctrine is a recognition that it is all of the people and not a select few, such as riparians or appropriators, that have the paramount interest in public waters like those at issue in this case. The public interests protected are numerous and seemingly expanding.63 The doctrine has been interpreted to protect navigation, fish and wildlife habitat, aquatic life, recreation, aesthetic and scenic beauty.64 Obviously, the preservation of such interests require that certain minimum flows be maintained in watercourses so that these public interests are protected. This does not, however, mean that if the minimum flows are not maintained any private property interest of riparians has automatically been taken because, in my view, these interests generally are held by the public at large and not by a few select landowners and it does not necessarily mean riparians have been, denied economically viable use of any land.
What the doctrine means, however, at a minimum is that grants of water rights in our streams and rivers, absent express or sufficiently clear legislative intent to the contrary, comes burdened with these public interests. In other words, the public interests are paramount to both riparian and appropriative interests and may be limited by proper legislation aimed at protecting these paramount public interests.
As to the majority’s treatment of the other issues involved in this case (consideration of groundwater in the appropriation application process and the recall issue) I concur therein except to the extent the *596views expressed by the majority on said issues are inconsistent with the views expressed above. Finally, I would remand the matter to the OWRB because from my review of the record the OWRB did not properly consider the needs of downstream domestic users and prior appropriators as it was statutorily required to do.
HARGRAVE, J., and REIF, Special Justice, have joined in the views herein expressed.
. See Toxic Waste Impact Group, Inc. v. Leavitt, 755 P.2d 626, 630 (Okla.1988).
. In Re Waters of Long Valley Creek Stream System, 25 Cal.3d 339, 158 Cal.Rptr. 350, 355, fn. 3, 599 P.2d 656, 661, f.n. 3 (1979). In said case the California Supreme Court said:
[A]ppellant also asserts that these common law cases disclose his future right to an unquantified amount of water has become "vested.” The assertion is without merit. As discussed post, riparian rights are limited by the concept of reasonable and beneficial use, and they may not be exercised in a manner that is inconsistent with the policy declaration of article X, section 2 of the [California] Constitution. Thus, to the extent that a future riparian right may impair the promotion of reasonable and beneficial uses of state waters, it is inapt to view it as vested, (emphasis added)
. The just compensation provision of the United States Constitution is found at U.S. CONST. amend. V. It applies to the actions of states through incorporation in U.S. CONST, amend. XIV.
. L.A. TECLAFF, WATER LAW IN HISTORICAL PERSPECTIVE at 6 (1985). The administrative disposition system is handled in various ways throughout the globe. An over-view of *585these various systems can be found in Chapter I of Teclaffs work.
. Id.
. 1 R. CLARK, WATER AND WATER RIGHTS § 15.1 at 60-61 (ed. 1967).
. Id. at § 18.1(C), p. 77.
. Id. at § 51.6-51.7, pp. 295-298.
. Gates v. Settlers’ Milling, Canal & Reservoir Co., 19 Okl. 83, 91 P. 856, 858 (Okla.1907). In such case this Court proceeded to apply the general rule of law concerning prior appropriation doctrine in the Western states.
. 1 R. CLARK, supra note 6, § 51.1 at 288-290; See also Harris v. Brooks, 225 Ark. 436, 283 S.W.2d 129, 132-133 (1955).
. 1 R. CLARK, supra note 6, § 16.2 at 67-69.
. Id. at § 16.1, pp. 66-67.
. Terr.Okla.Stat. § 4162 (1890).
. Sess.Laws of Okla.Terr., Ch. 19, Art. I, §§ 1-21, pp. 187-195 (1897).
. For the exact boundaries of the Oklahoma Territory and Indian Territory refer to 26 U.S.Stat. at Large, Ch. 182, § 1 (Oklahoma Territory) and 26 U.S.Stat. at Large, Ch. 182, § 29 (Indian Territory). Oklahoma Territory had been carved out of what had previously been a part of Indian Territory by the Organic Act of 1890, 26 U.S. Stat. at Large, §§ 1-44. Appellees land is in a portion of Oklahoma that was still Indian Territory at the time of passage of the 1897 appropriation statute.
. Sess.Laws of Okla.Terr., Ch. 19, Art. I, § 2, pg. 188.
. Id. at § 10, pp. 190-191.
. Sess.Laws of Okla.Terr., Ch. 21, Art. I, §§ 1-56, pp. 274-301 (1905).
. Id. at § 1, pg. 275.
. Okla.Gen.Stat., Ch. 37, §§ 3455-3516 (1908). The 1905 Territorial act would have been in force immediately after statehood in the entirety of the State (Oklahoma became a state on November 16, 1907 by Proclamation of Statehood executed by President Theodore *587Roosevelt) prior to the passage of the 1908 legislation by virtue of the last provision of § 13 of the Enabling Act of 1906, 34 U.S.Stat. at Large, Ch. 3335 §§ 1-22, which provided that the laws in effect in Oklahoma Territory would extend over the entire State, until changed by the Legislature.
. Comp.Laws Okla., Ch. 54, §§ 3915-3982 (1909).
. Rev.Laws.Okla.Ann., Vol. I, Ch. 40, §§ 3636-3688 (1910).
. Sess.Laws of Okla., Ch. 76, § 1 (1925).
. See Smith v. Stanolind Oil & Gas Co., 197 Okl. 499, 172 P.2d 1002 (1946) (lessee of riparian owner allowed to take water from a stream and diminish its flow as long as the water left was sufficient for a lower riparian’s domestic use and for approximately 45 head of cattle); Baker v. Ellis, 292 P.2d 1037 (Okla.1956) (permanent injunction upheld against defendant’s construction of a dam which threatened the supply of water to a downstream riparian owner who utilized the water for stock purposes).
. 18 Okl. 32, 90 P. 26 (Okla.1907).
. Miller v. Marriott, 48 Okl. 179, 149 P. 1164 (1915).
. 168 Okl. 588, 35 P.2d 463 (1934).
.A detailed analysis of the legislative history behind the comprehensive stream water law amendments of 1963 is found in two law review articles. Rarick, Oklahoma Water Law, Stream and Surface in the Pre-1963 Period, 22 Okla. L.Rev. 1 (1969); Rarick, Oklahoma Water Law, Stream and Surface Under the 1963 Amendments, 23 Okla.L.Rev. 19 (1970). These articles show that all water users in the State were represented in the process leading up to passage of the legislation, including riparians and non-riparians alike.
. 82 O.S.Supp.1963, § l-A(a). Domestic use definitions are now found at 82 O.S.1981, § 105.1(B).
. 82 O.S.Supp.1963, § l-A(b)(l)-(7) and (c). The priorities are now set forth at 82 O.S.Supp. 1988, § 105.2.
. 1963 Okla.Sess.Laws, Ch. 205, § 4, pg. 269.
. 82 O.S.Supp.1963, § 6.
. Id.
. Id.
. 82 O.S.Supp.1963, § 5.
. 174 U.S. 690, 702-703, 19 S.Ct. 770, 774-775, 43 L.Ed. 1136 (1899); See also Kansas v. Colorado, 206 U.S. 46, 94, 27 S.Ct. 655, 666, 51 L.Ed. 956 (1907); California v. United States, 438 U.S. 645, 662-663, 98 S.Ct. 2985, 2994-2995, 57 L.Ed.2d 1018 (1977).
. 464 P.2d 748, 753 (Okla.1968). We also recognized in Curry v. Hill, 460 P.2d 933 (Okla.1969) that although a riparian may own the river bed of a generally thought of nonnavi-gable river which is navigable in fact, his ownership of the river bed grants him no exclusive fishing rights in the river, but the public has a right to use the waterway as a public highway and may fish therein, as long as they do not trespass on the land of the riparian. Id. at 933-934.
. 464 P.2d at 754, supra note 37.
. Hudson County Water Co. v. McCarter, 209 U.S. 349, 356, 28 S.Ct. 529, 531, 52 L.Ed. 828 (1908); See also Trelease, Coordination of Riparian and Appropriative Rights to the Use of Water, 33 Texas L.Rev. 24, 66-67 (1954).
. 25 Cal.3d 339, 158 Cal.Rptr. 350, 599 P.2d 656 (1979), supra note 2.
. Id. at 668-669.
. In Re Water of Hallet Creek Stream System, 44 Cal.3d 448, 243 Cal.Rptr. 887, 899-901, 749 P.2d 324, 336-338 (1988), cert. denied, 488 U.S. 824, 109 S.Ct. 71, 102 L.Ed.2d 48 (1988).
. 339 U.S. 725, 70 S.Ct. 955, 94 L.Ed. 1231 (1950).
. Id. at 742-755, 70 S.Ct. at 964-971. It is interesting to note that Justice Douglas, concurring in part and dissenting in part, sought to emphasize that the water rights involved were not protected under U.S. Const. amend. V, but that only the Reclamation Act of 1902 required payment by its terms. Id. at 762, 70 S.Ct. at 974.
. 84 S.D. 701, 176 N.W.2d 239 (1970) after remand 87 S.D. 151, 204 N.W.2d 105 (1973).
. 204 N.W.2d at 107.
. Id. at 107.
. 642 S.W.2d 438 (Tex.1982).
. Id. at 442.
. A discussion of the history of Texas water law is contained at pp. 439-442 of the Texas Supreme Court opinion.
. Id. at 444.
. Id. at 445.
. 454 U.S. 516, 102 S.Ct. 781, 70 L.Ed.2d 738 (1982).
. Id. at 530, 102 S.Ct. at 792.
. Other cases supportive of my position are State v. Knapp, 167 Kan. 546, 207 P.2d 440 (1949); In Re Hood River, 114 Or. 112, 227 P. 1065 (1924), appeal dismissed 273 U.S. 647, 47 S.Ct. 245, 71 L.Ed. 821 (1926); and In Re Deadman Creek Drainage Basin, 103 Wash.2d 686, 694 P.2d 1071 (1985). See also Village of Tequesta v. Jupiter Inlet Corporation, 371 So.2d 663 (Fla.1979) cert. denied 444 U.S. 965, 100 S.Ct. 453, 62 L.Ed.2d 377 (1979). In said case the Florida Supreme Court rejected a taking argument in regard to underground water by determining under Florida law that landowners only had a usufructuary interest in such water, rather than any ownership interest. As such the court ruled the interest could not be characterized as private property. It also specifically rejected the argument that a right of user was itself private property requiring condemnation, unless the overlying land had been rendered useless by a diversion of the water by a city government. The court further determined that there was no necessity for its state water act to provide for condemnation of any unexercised common law right to use water. Other cases upholding groundwater legislation are found in Kansas and South Dakota. See Knight v. Grimes, 80 S.D. 517, 127 N.W.2d 708 (1964);, F. Arthur Stone & Sons v. Gibson, 230 Kan. 224, 630 P.2d 1164 (1981). I express no view on how I would treat legislation concerning underground percolating water not forming a definite stream as such is not before us at this time.
. Appellees do not raise a constitutional lack of notice argument in regard to their ability to validate any preexisting uses and establish priority therefore under the 1963 legislation. There is, thus, no occasion for us to decide any such issue here. It is worth noting, however, that we have not been hesitant to find a lack of notice in a stream system adjudication process under the 1963 legislation when the facts so warranted. Talley v. Carley, 551 P.2d 248 (Okla.1976) (Priority of riparian appropriators deemed a nullity when OWRB failed to take adequate steps to ascertain the last known address of the involved parties). It is also worth noting, contrary to the view of the majority, that Talley was a specific acknowledgement by this Court that the 1963 water law amendments expressly unitized the water law of this State under the appropriation doctrine and that to protect a future use of water an appropriation would have to be granted by the OWRB.
. 541 P.2d 1321 (Okla.1975).
. Id. at 1323.
. Agins v. Tiburon, 447 U.S. 255, 260, 100 S.Ct. 2138, 2141, 65 L.Ed.2d 106 (1980). We have recognized the proper test in land use/just compensation situations in the recent case of April v. City of Broken Arrow, 775 P.2d 1347 (Okla.1989). The United States Supreme Court has upheld land use regulations even in the face of arguments that a drastic diminution in land value has occurred by virtue of the regulations. See e.g. Penn Central Transportation Co. v. New York City, 438 U.S. 104, 131, 98 S.Ct. 2646, 2663, 57 L.Ed.2d 631 (1978) and Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926). In my view, such cases dispose of any argument that mere diminishment in riparian land value by virtue of the limitation of riparian water use to domestic use and uses granted by appropriation permit entitles a riparian to compensation for a taking of property.
. The evidence before the OWRB appeared to show the appropriation at issue would not, as Appellees assert, have the effect of drying up the stream system. In fact, the evidence was that the average annual runoff from rain water for all of the Clear Boggy Basin down to the point where Buck Creek and Clear Boggy Creek intersect was 59,851 acre-feet of water per year. The minimum runoff was calculated to be 23,866 acre-feet of water per year. These figures did not include any flow coming from Byrds Mill Spring and the expert witness for the City was of the opinion the amount of runoff alone would be sufficient to meet all prior existing water rights in the entire watershed, i.e. in the entire upper Clear Boggy System. From my review of the record it is only in extreme drought situations that diversion of the flow from Byrds Mill spring might have the effect of providing less water than needed.
. Inverse condemnation has been aptly distinguished from a proceeding in eminent domain by the United States Supreme Court in Agins v. Tiburon, supra note 59. There it said:
Inverse condemnation should be distinguished from eminent domain. Eminent domain refers to a legal proceeding in which a government asserts its authority to condemn property. [ ] Inverse condemnation is "a shorthand description of the manner in which a landowner recovers just compensation for a taking of his property when condemnation proceedings have not been instituted.” (citations omitted) Id., 447 U.S. at 258, f.n. 2 [100 S.Ct. at 2140, f.n. 2.]
This Court has recognized the potential viability of an inverse condemnation recovery when a landowner’s property was flooded by the effect of certain municipal flood plain ordinances and a city’s alleged inadequate maintenance of drainage channels. Mattoon v. City of Norman, 617 P.2d 1347 (Okla.1980). We also recognized in April v. City of Broken Arrow, supra note 59, *595the distinction between a facial attack on land use regulation in regard to whether a taking of property has occurred and one where particular actions taken under the legislation are applied in such a manner that constitute a taking, even though the legislation is facially constitutional.
.In footnote 53 of the majority opinion the trial court is directed, in determining whether the riparian owners’ use of water is reasonable, to consider that uncaptured wildlife is the property of the State. I, therefore, assume the majority still leaves open the possibility protection of uncaptured wildlife by riparians may, under certain unspecified circumstances, be deemed a reasonable use and if an appropriation will interfere with said use compensation must be paid to the riparian even though the wildlife is not the property of the riparian, but is deemed to be public property.
. Johnson, Water Pollution and the Public Trust Doctrine, 19 Environmental Law 485 (1989).
. Id.