| OCR Text |
Show 316 APPROPRIATION OF WATER water is in effect, the procedure provided by the current statute is either held or assumed to be the only way in which an intending appropriator may acquire an appropriative right. Idaho is a definite exception, as discussed later in this subtopic. The intent of the legislatures that this specific, detailed procedure shall be exclusive is generally apparent from the wording of their declarations. Some, such as that of North Dakota, state that any intending appropriator, before commencing construction of works or taking water from any constructed works "shall make an application to the State Engineer for a water permit unless such construction or taking from such constructed works is for domestic or livestock purposes or for fish, wildlife and other recreational uses."453 Others go further. For example, after such an introductory statement, Oregon adds emphasis by declaring that no person shall use, store, or divert any water until after issuance of such a permit.454 Several statutes provide that no water right may be acquired solely by adverse use or adverse possession.455 The Texas legislature adds a provision that anyone who willfully takes water for any purpose without first complying with all provisions of the act is guilty of a misdemeanor.456 And the California Water Code declares that the diversion or use of water contemplated by the statute other than as authorized therein is a trespass, which the Board may bring action to have enjoined.457 Except in Idaho, high courts that have been called upon to pass on these legislative declarations have usually interpreted them literally. For example, the requirements of the pioneer statute-Wyoming-were so construed as to make a permit mandatory. This was held to be in the public interest, reasonable, and constitutional.458 And in Arizona-the latest of the 17 contiguous Western States to adopt an administrative statute-the supreme court pointed out that prior to the 1919 water rights enactment an intending appropriator had the choice of following the then current statute or of disregarding it and relying solely on mere application of water to beneficial use. Thereafter, it was stated, 453 N. Dak. Cent. Code Ann. § 61-04-02 (Supp. 1969). 454Oreg. Rev. Stat. §537.130 (Supp. 1969). 4SSKans. Stat. Ann. § 82a-705 (1969); Nev. Rev. Stat. § 533.060(3) (Supp. 1967); Utah Code Ann. § 73-3-1 (1968). 456Tex. Rev. Civ. Stat. Ann. art. 7520 (1954). See the declaration of an emergency respecting this matter in Laws 1953, ch. 358, § 3. 457 Cal. Water Code § 1052 (West Supp. 1970). Citing this provision, the California Supreme Court observed that therefore there need be no apprehension lest rights become vested, by prescription or otherwise, in an excessive use of water or in a use for unauthorized purposes: Meridian v. San Francisco, 13 Cal. (2d) 424, 450, 90 Pac. (2d) 537 (1939). 4S8Wyo. Stat. Ann. § 41-201 (1957); Laramie Rivers Co. v. Le Vasseur, 65 Wyo. 414, 431, 202 Pac. (2d) 680 (1949); Wyoming Hereford Ranch v. Hammond Packing Co., 33 Wyo. 14, 29-36, 236 Pac. 764 (1925). |
