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Show CHANGE IN EXERCISE OF WATER RIGHT 627 changed by the appropriator from time to time if no injury results to others, or may be changed by direction of the courts in proper cases in order to enlarge the use of the waters of the stream.161 In a Texas case, it was urged that an alleged prior right had been forfeited because the holder had changed the headgate without authority of the State administrative agency. A court of civil appeals held that: "The statute fixes a penalty, but does not forfeit water rights in such instances."162 Rules and regulations of the State water agency require its permission for changes in point of diversion of appropriated water.163 The Wyoming Legislature has provided administrative procedure for making changes in point of diversion on an interstate stream that enters Wyoming, from a point outside the State to one within it, if the irrigated land is in Wyoming.164 Until 1965, it had not expressly authorized such changes within the State; but the supreme court approved the general western rule allowing changes of point of diversion if no other appropriators would be injured, and it noted that this has been said to be a property right.165 Legislation enacted in 1965 expressly provides that anyone having heretofore acquired an adjudicated or unadjudicated right to the beneficial use of "any stream in the State" may change the point of diversion upon applying for and obtaining the permission of the appropriate State agency.166 No such permission shall be granted unless the right of other appropriators shall not be injuriously affected.167 Purpose of statutory procedure.-With respect to the statutes of New Mexico and Colorado authorizing changes in exercise of appropriative rights, a Federal court expressed the view that:168 Douglas, 7 Ariz. 41, 44, 60 Pac. 722 (1900); Salt River Valley Water Users' Assn. v. Norviel, 29 Ariz. 360, 370, 374,499, 502, 241 Pac. 503 (1925), 242 Pac. 1013 (1926). l61Pima Farms Co. v. Proctor, 30 Ariz. 96,105, 245 Pac. 369 (1926). 162Ward County W. I. Dist. No. 3 v. Ward County Irr. Dist. No. 1, 237 S. W. 584, 588 (Tex. Civ. App. 1921), reformed and affirmed, 117 Tex. 10, 295 S. W. 917 (1927). 163Tex. Water Rights Comm'n, "Rules, Regulations and Modes of Procedure," rules 605.1 to 610.2 (1970 Rev., Jan.~1970). 164Wyo. Stat. Ann. § § 41-19 to -25 (1957). 16SRamsay v. Gottsche, 51 Wyo. 516, 530, 69 Pac. (2d) 535 (1937); Van Tassel Real Estate & Live Stock Co. v. Cheyenne, 49 Wyo. 333, 350-351, 54 Pac. (2d) 906 (1936); Holt v. Cheyenne, 22 Wyo. 212, 232,137 Pac. 876 (1914). I66If an adjudicated right, the State Board of Control; if an unadjudicated right, the State Engineer. 167Wyo. Laws 1965, ch. 138, § 1, Stat. Ann. § 41-10.4 (Supp. 1969). In White v. Wheat land Irr. Dist., 413 Pac. (2d) 252, 258-259 (Wyo. 1966), the court noted that although prior to this legislation State agency approval for a change of diversion point was not required, if an appropriator chose to submit to the jurisdiction of the State agency for purposes of having a change already made confirmed and his certificate amended accordingly "we perceive no reason why that could not have been done." i6*Lindsey v.McClure, 136 Fed. (2d) 65, 69-70 (10th Cir. 1943). |
