dissenting: This case illustrates the impact of the court’s decision in Williams v. City of Wichita, 190 Kan. 317, 374 P.2d 578 (1962), and the reasons for my dissenting opinion to which I adhere.
The patent granted by the Federal Government to persons in Kansas who had established homestead rights to land settled prior to statehood transferred ownership of the land, including rights to the water beneath the surface, to those who homesteaded and their lawful successors in title in accordance with established Kansas law prior to the Williams decision. Kansas was not affected by the Desert Land Act of 1877 which affected the nature of landowners’ titles acquired from the Federal Government in seventeen western arid states. Both our court and counsel for the Kansas State Board of Agriculture continue erroneously to cite water cases from these arid states as persuasive precedent.
In the Williams case the court upheld the Legislature’s right to confiscate from the landowners of Kansas the water rights beneath the surface of the land. Why? The reason is stated in Williams v. City of Wichita, 190 Kan. at 340, as follows:
*238“The Act, regulatory in purpose and nature, requires that water users make application and furnish information to the chief engineer of the Division of Water Resources concerning the proposed use (82a-709). Such a requirement is not a confiscation of water rights by legislative fiat. Rather, it is a proper and reasonable exercise of the police power of the state in controlling water use for the purpose of preventing waste and to conserve a valuable natural resource.”
Let us review the practical application of the entire Water Appropriation Act since 1962 to the facts in this case. Arthur Stone and his sons undertook to pump underground water from land they own to irrigate farm crops growing on their land. By order of the Chief Engineer of the Division of Water Resources they were ordered to cease and desist. This litigation followed.
Provisions of the Act authorizing the issuance of appropriation permits to those who first make application for the use of water from the area in question have been exhausted. The benefit of the rule “first in time is first in right” has spent its force. Application of this rule under the Act for the purported purpose of preventing waste and conserving natural resources is, of course, nothing more than a redistribution of the wealth to the favored few after the initial confiscation of the landowner’s vested rights to his property. From now on the redistribution of the wealth (vested rights to the water) will be controlled by the spoils system. Under SB 303, L. 1981, ch. 302, § 1, enacted by the 1981 session of the Legislature, the Director of the Kansas Water Office will be a political appointee of the Governor.
What waste did the Legislature intend to prevent by the Water Appropriation Act? It was the nonuse of water which permitted it to flow out of the state and into rivers that emptied into the Gulf of Mexico. The conservation of a valuable natural resource, water, intended under the Act was use for the benefit of the state. Here the appellants intended to use the water for irrigation of farm crops on their land. Underground water drawn from their land would flow onto their land, permeate the soil, and return to replenish the underground water or be utilized in the growth and development of the farm crops irrigated. What is the waste? Is this not a beneficial use? The use of water by those holding permits to appropriate water will be identical.
Now, after the state has confiscated the vested property right of the landowner to the groundwater beneath the surface of his land and provided in the Act that “all water in the State of Kansas is hereby dedicated to the use of the people of the State,” it is *239paradoxical to give the Director of the Kansas Water Office sole authority to redistribute these vested property rights to individuals of his choosing who make application for a permit to appropriate water.
Furthermore, the statutory authorization of Groundwater Management Districts, K.S.A. 82a-1020 et seq., is structured in such a way as to encourage participation only by those water users having vested rights to appropriate groundwater. This is accomplished by allowing a landowner who is not a water user to exclude his or her land from district assessments, with attendant loss of voting privileges, and by granting voting privileges to water users with vested rights to appropriate groundwater, whether or not they are landowners.
The result is the elected board of directors in groundwater districts will be holders of vested groundwater appropriation rights. A board of directors, whose membership consists of individuals having an interest in the preservation of their own vested right to the appropriation of groundwater, will not be sympathetic to others requesting new appropriation permits. In this case the Southwest Kansas Groundwater Management District No. 3 ruled that additional wells would violate their aquifer depletion criteria.
Unfortunately, the appellants in this case have not challenged the constitutionality of the 1945 Water Appropriation Act. The only challenge on constitutional grounds is to K.S.A. 82a-728. The basic decision upholding the constitutionality of the Act is Williams v. City of Wichita, decided in September, 1962.1 am the only present member of the Kansas Supreme Court who participated in that decision. Here, ironically, counsel for the Kansas State Board of Agriculture argues stare decisis to uphold Supreme Court decisions since 1962, whereas the identical argument was made by the landowner Williams to uphold decisions of the Supreme Court prior to 1962 to affirm the trial court and have the Act declared unconstitutional, when Williams v. City of Wichita was decided.