| OCR Text |
Show 400 APPROPRIATION OF WATER Apparently, the first legislative pronouncement in which this appears was in the California Civil Code of 1872, in the first western statutory procedure for appropriating water.869 It was not repealed or replaced by the present California Water Code. Effect of statutory administration restrictions.-The flat declarations of "First in time, first in right," which the water administration statutes picked up from early customs and judicial declarations, are now modified in nearly all Western States with respect to the essential time factor by administrative restrictions and preferences directed or authorized by the legislatures. This facet of the law of prior appropriation is becoming increasingly important in the field of legislative and administrative control over the conservation and utilization of public water supplies. It is the subject of the next ensuing topics. Some further discussion of the priority principle appears in chapter 8, under "Elements of the Appropriative Right." Restrictions and Preferences in Appropriation of Water The administrative systems for control of water appropriations, which in most States are the exclusive means of acquiring such rights, accord to no one the unqualified right to appropriate water. These statutory systems contain restrictions on the approval of applications for permits. A result of the restrictions may be refusal on the part of the administrator to approve the application, in whole or in part. Also, many of the statutes designate preferences, either in the process of making appropriations or in the use of water already appropriated, or both. In addition, there are some provisions for taking possession of existing senior rights to the use of water for low preference purposes, in order that they may be exercised by junior appropri- ators for high preference purposes. It is true that several State constitutions or statutes prohibit the denial of rights to appropriate stream waters. But in the States that have water appropriation-permit statutes, this inhibition is coupled with certain excep- tions. A general rule in the appropriation-permit States is (1) that to be approved, an application for a permit to appropriate water must conform to the specific requirements of the statute; but (2) that the application must be denied (a) if there is no unappropriated water available in the proposed source, or (b) if the granting would threaten the stability or value of preexisting water rights, or (c) if the proposed project appears inimical to the public welfare. It is also a general rule that the administrator may grant a qualified or limited right consonant with the statutory restrictions. The statutory preferences in appropriation of water place domestic water use highest on the lists. This results from the indispensability of water in preserving human life. Municipal use is generally coupled with domestic, either 'Cal. Civ. Code § 1414 (West 1954). |
