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Show 304 APPROPRIATION OF WATER "proper party," the court may request the administrative agency to act as referee to investigate and report on any or all physical facts involved.420 The Colorado system was said in 1900 to have been "noteworthy as the first important attempt made by any state legislature to provide a special proceeding for the determination of controversies over water rights."421 These special proceedings are strictly judicial. This system has been augmented by a statutory procedure in which the State Engineer (and a division engineer) provides the water clerk with a tabulated list, in order of seniority, of all decreed water rights.422 Hawaii was not a State, or even a part of the United States, when the Colorado legislature enacted its first adjudication statute in 1879. However, the legislature of the Hawaiian Kingdom in 1860 authorized the commissioners of rights-of-way to hear and determine all controversies respecting rights in water.423 The commissioners' functions are now performed by judges of the circuit courts. Their jurisdiction in this respect is differentiated from the concurrent jurisdiction of the circuit judges sitting as courts of equity.424 In several States, provision is made for the technical assistance of the State administrator in water rights actions-a matter of only furnishing evidence. In addition, there is the court reference procedure. This is utilized considerably in California and, in varying regard and extent, it appears also in the water administrative statutes of some other States.425 Under this plan, a court in which a water rights controversy is being tried may, at its discretion, call upon the State administrator for assistance on such matters of fact or questions of law as it deems necessary.426 On a number of occasions, the California trial courts have been encouraged by the State supreme court to take advantage of this opportunity to obtain the skilled and unbiased services of the State agency for help in solving their baffling technical an questions. (3) Distribution of water. All Western States except Hawaii have some kind of statutory procedure respecting the distribution of water to those entitled to receive it. Montana has provisions respecting the appointment, under certain conditions, of water commissioners by courts, to act under their orders, but no administrative function is involved.428 In Nevada, the State administrative 420Kans. Stat. Ann. § 82a-725 (1969). 421 Long, Joseph R., "A Treatise on the Law of Irrigation," p. 193 (1902). 422 Colo. Rev. Stat. Ann. § 148-21-27(4) (Supp. 1969). 423 Haw. Laws 1860, p. 12. 424 Haw. Rev. Stat. § § 664-31 to -37 (1968). 425See, e.g., Nev. Rev. Stat. § 533.240 (Supp. 1967); Oreg. Rev. Stat. § 539.020 (Supp. 1955). 426 Cal. Water Code § 2000 (West Supp. 1970). 421Rancho Santa Margarita v. Vail, 11 Cal. (2d) 501, 81 Pac. (2d) 533 (1938); Tulare In. Dist. v. Lindsay-Strathmore In. Dist., 3 Cal. (2d) 489, 45 Pac. (2d) 972 (1935). 428 Mont. Rev. Codes Ann. § § 89-1001 to -1024 (1964). |