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Show 432 Mississippi such as where the water is not available for use, these may actually be read into the section as has been done in some states.72 A separate section deals with the way in which forfeitures or modi- fications of water rights may be affected. It provides: No water appropriation acquired pursuant to law shall be declared forfeited and surrendered except by a court of competent jurisdiction as other property rights are determined. Provided, however, upon good cause shown, the board may modify or terminate any appropriation at any time.73 The proviso, in part at least, is clearly inconsistent with the prin- cipal provision which confines jurisdiction to adjudicate forfeitures to the courts. It stretches the imagination to suggest that the word "terminate" means something less than a forfeiture. On the other hand, a modification of an existing water right may not necessarily be inconsistent with the first sentence, and the Board may have juris- diction to take such action. It has been suggested that the board can at least make seasonal or "temporary" modifications or terminations, just as it could make modifications or terminations of prior uses continued under an order of determination.74 The forfeiture statutes do not mention the possibility of loss of water rights, whether evidenced by permits or by notices filed before December 31, 1958, through abandonment or prescription. Again, it has been suggested that abandonment, as an intentional relinquish- ment accompanied by nonuse, may still exist as an independent basis for loss of a water right, but that prescription does not exist as a method of acquiring or losing a water right.75 It has been said that there is a traditional reluctance of the Mississippi court to extend the adverse possession statute of limitations to property interests not clearly associated with the land itself, and that rights to use water subject to appropriation cannot be "initiated or acquired" except by compliance with the permit procedure. 3.5 Storage Waters, Artificial Lakes, and Ponds With respect to the retention and storage of water, the act pro- vides that nothing contained therein shall interfere with a land- owner's right to: * * * place a dam across a gully on his property or across a stream that originates on his property so long as provision is made for continued established average minimum streamflow, if and when such flow is required to protect the rights of water users below.76 Further, subject to the common law or other lawful water rights, a person is entitled to build and maintain a dam on any stream having a minimum flow of not more than one-half million gallons of water per day and to utilize up to 300 acre-feet of the impounded water without a permit from the board. But such action cannot adversely affect the established average minimum flow in the stream below the dam.77 72 See, e.g., Rocky Ford Irr. Co. v. Rents Lake Reservoir Co., 104 Utah 202, 135 P 2d 108 (1943). 73 Sec. 5956-05. 74 See Champion, note 1, at 25. 75 Id. at 26-27. n Sec. 5956-04(a). "Sec. 5956-04(b). |
