| OCR Text |
Show PROPERTY CHARACTERISTICS 467 that injury may result may be heard by the administrator-whose decision is subject to judicial review-when the proposed change is under official consideration. The administration statutes make noninfringement of other rights an express condition of the administrator's decision. In Colorado, where there is no administrative control over this function, the supreme court observed that the right to change the place of use and point of diversion relating to an appropriation of water is an inherent property right, not conferred by the remedial statute. It was said to be preexisting as an incident of ownership, and always enforceable so long as the vested rights of others are not injuriously affected.157 Likewise in Montana, with a statute authorizing changes in place of use of water158 but without procedure for effectuating them, the supreme court has held that "A water right is not an inseparable appurtenance to land in Montana;"159 and that an appropriator has the right to change the place of use of the water so long as the change does not injuriously affect other appropriates.160 Several statutes authorize changes of place of use under a condition comparable to that of Nevada. This includes, as a proviso to a declaration that all water used for beneficial purposes shall remain appurtenant to the place of use, the following:161 That if for any reason it should at any time become impracticable to use water beneficially or economically at the place to which it is appurtenant, the right may be severed from such place of use and simultaneously transferred and become appurtenant to other place or places of use, in the manner provided in this chapter, and not otherwise, without losing priority of right heretofore established; * * *. In declaring that all water used in New Mexico for irrigation purposes, except as otherwise provided by the statute, shall be considered appurtenant to the land on which it is used, the statute of the State adds that the right to use the same on such land shall never be severed therefrom without the owner's consent. By consent of the owner, however, all or part of the right may be so severed and simultaneously transferred and become appurtenant to other land or for other purposes, without losing priority. The usual '"Brighton Ditch Co. v. Englewood, 124 Colo. 366, 372-373, 237 Pac. (2d) 116 (1951). 158 Mont. Rev. Codes Ann. § 89-803 (1964). 1MKofoed v. Bray, 69 Mont. 78, 84, 220 Pac. 532 (1923). 160 Whitcomb v.Murphy, 94 Mont. 562,565, 23 Pac. (2d) 980 (1933). 161 Nev. Rev. Stat. § 533.040 (Supp. 1969); Okla. Stat. Ann. tit. 82, § 34 (1970); S. Dak. Comp. Laws Ann. § 46-5-34 (1967). |
