OCR Text |
Show 318 APPROPRIATION OF WATER 1889 constitution provided that the right to divert and appropriate the unappro- priated waters of any natural stream for beneficial uses should never be denied.466 This declaration has been construed as authorizing appropriation of stream water "by actually diverting the water and applying it to a beneficial use."467 It is true that when enacted, the statute provided that all rights to divert and use the waters of the State for beneficial purposes shall be acquired and confirmed under its provisions. It still so provides.468 Despite this, the Idaho Supreme Court holds that in view of the constitutional declaration, legislation providing for a specific method of appropriating water does not thereby set up an exclusive method.469 There is no superiority of the right obtained under either method over that obtained under the other. There is an advantage in following the statutory procedure with respect to application of the doctrine of relation. Nature of powers of administrators.-{I) Administrative and quasi-judicial. State officials vested with supervision and control over the unappropriated stream waters within their jurisdiction are part of the executive arm of the State Government. Primarily and essentially, they are just what they are commonly designated-administrative officers. In the performance of some of their delegated functions these officials exercise quasi-judicial powers. But this is no more than is done by many other regulatory boards and commissions throughout the United States. In no case is a water user or water claimant denied recourse to the truly judicial processes of the courts from an action, or from a failure to act, on the part of a water official which impairs a substantial right. A few examples may be cited of instances in which the courts have commented or passed upon the nature of water administration powers, chiefly in the fields of determination or adjudication of water rights and distribution of water. Objection was made to the Wyoming administrative law on the ground that it conferred judicial power on the Board of Control. The supreme court answered that this was a purely statutory proceeding which did not depend on the complaint of an injured party, and did not result in a judgment for damages nor issuance of any customary judicial process. The court concluded that the determination of relative water rights by the Board of Control was primarily administrative rather than judicial in character, inasmuch as in such proceeding no claimant obtained redress for injury but obtained evidence of title to a Fed. 9, 20-21 (9th Cir. 1917). Also see Village of Peck v. Denison, 92 Idaho 747, 450 Pac. (2d) 310, 313(1969). 466 Idaho Const., art XV, § 3. In 1928, this section was amended to authorize the State to regulate and limit the use thereof for power purposes. *61Sand Point Water & Light Co. v. Panhandle Development Co., 11 Idaho 405, 413-414, 83 Pac. 347 (1905). 468 Idaho Code Ann. § 42-201 (1948). *69Nielson v. Parker, 19 Idaho 727, 730-731, 733, 115 Pac. 488 (1911); Bachman v. ReynoldsIrr. Dist., 56 Idaho 507, 514, 55 Pac. (2d) 1314 (1936). |