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Show 306 SUMMARIES OF THE STATE WATER RIGHTS SYSTEMS vested right holders with respect to the operation or exercise of their vested rights."115 Reference by court in water rights action. -Part of California's well-developed (Continued) rights. It places the entire burden upon the chief engineer." Kansas Water Resources Bd., supra at 92, 96, 97. (In the cited case, the chief engineer had determined that a certain water user did not have a vested right but the court concluded that the notice of such order "was never completed in a statutory manner. The result is that Lockhart, the water user, has never been placed in a position where he must have appealed." 255 Pac. (2d) at 1017.) Among other recommendations for amendments in the legislation, the Board included suggested detailed procedures, among others, for notices, hearings, and claim filings that might be incorporated in §82a-704. Kansas Water Resources Bd., supra at 98-100, 135-137. But no material changes in the statutory provisions described above appear to have been made in the 1957 amendments adopted by the legislature, except as described in note 115 infra. nsKans. Laws 1957, ch. 539, §6, Stat. Ann. §82a-704 (1969). From the former wording in §82a-704 that "The chief engineer shall then make an order determining and establishing the rights of all persons * * *" the words "and establishing" were deleted by the 1957 amendment. Laws 1957, ch. 539, §6. In addition, from the former wording of §82a-712 that "no common-law claimant without a determined vested right, or other person without a determined vested right * * * shall prevent, restrain, or enjoin an applicant from proceeding in accordance with the terms and conditions of his permit" the word "determined" was deleted by the 1957 amendment. Id. §18. At the 1957 legislative session, Senate Bill No. 339 added at the end of amended §82a-704 the following paragraph: "The foregoing provisions hereof are for the purpose of providing an administrative procedure for the cataloguing of existing vested rights for the use, benefit, assistance, and information of the chief engineer." But this was not included in the final enactment of Laws 1957, ch. 539. In view of some of the foregoing factors in this and the preceding footnote, the above proviso conceivably is intended to prevent the determinations of the Chief Engineer from constituting adjudications of any water rights. But another conceivable alternative effect perhaps intended by the above proviso is that while the relative rights of vested rights holders, among themselves, are not deemed to be adjudicated in this statutory proceeding, their vested rights are deemed to be adjudicated as against the State and later applicants for appropriations. In this regard, see Johnson, C.W., "Adjudication of Water Rights," 42 Tex. L. Rev. 121, 134 (1963); Note, "Water Rights-Finality of General Adjudication Proceedings in the Seventeen Western States," 1966 Utah L. Rev. 152, 160. See also Note, 1966 Utah L. Rev., supra at 172, regarding a similar proviso in Oklahoma legislation enacted in 1963. Okla. Stat. Ann. tit. 82, §6 (1970), repealed, Laws 1972, ch. 256, §33. Also recall, as mentioned above, that a determination shall be made of (1) the rights of vested rights holders and (2) the extent of their uses on the 1945 act's effective date. The proviso conceivably is intended to apply to the determination of the operation or exercise of their relative rights but not to the determined extent of their uses. See Clark, R.E., "The California Doctrine: Appropriative and Riparian Rights to Surface Water," in 5 "Waters and Water Rights" §430.6 (R. E. Clark ed. 1972); Note, 1966 Utah L. Rev., supra at 160. In view of the foregoing and other conceivable factors and considerations, the intended effect of the proviso and the other, apparently related, 1957 amendments mentioned above is problematical. |