OCR Text |
Show 721 statute applies.61 Failure to make use of the water for a period of three years results in forfeiture of the right.52 Procedure is provided in the Water Code for the determination of rights to the use of water (excluding percolating water) by the Depart- ment, upon petition by one or more claimants on a stream system; the order of determination being filed in the superior court, the proceedings therein following as nearly as practicable the rules governing civil actions, and culminating in a decree determining the rights of all parties.63 It is also provided that in any suit brought to determine water rights, the court may order a reference to the Department, as referee, of any or all issues involved, or may refer the suit to the Depart- ment for investigation and report upon any or all of the physical facts involved.64 This reference procedure is discretionary with the trial court; and it is subject to no limitation upon classes of water to which it is applicable.65 The Water Code makes provision for the creation of watermaster service areas by the Department when and where needed, for the appointment and duties of watermasters, and for the distribution of water in the service areas in accordance with rights of use.56 Colorado The constitution of Colorado declares that the unappropriated water of every natural stream is the property of the public, subject to appro- priation, and that the right to divert such waters to beneficial uses shall never be denied.67 It is also declared that priority of appropriation "Calif. Water Code, § 1225; Crane v. Stevinson, 5 Calif. (2d) 387, 398, 54Pac. (2d) 1100 (1936). M Calif. Water Code, § 1241. Section 1411 of the Civil Code had declared that an appropriative right should cease when the appropriator ceased to use the water, but prescribed no time period. The supreme court, in Smith v. Hawkins, 110 Calif. 122, 127, 42 Pac. 453 (1895), by analogy to the periods fixed by law for the acquisition and loss of prescriptive rights, held that a con- tinuous nonuser for five years would forfeit the appropriative right. 53 Calif. Water Code, §§ 2500 to 2900. 84 Calif. Water Code, §§ 2000 to 2050. 88 The reference procedure was applied to the waters of Raymond Basin in Pasadena v. Alhambra, supra, footnote. 42. The trial court had referred the matter to the Department for a determination of the facts, and the report of the Department was received in evidence, pursuant to section 24 of the Water Commission Act and §§ 2000 to 2050 of the Water Code which replaced it. The reference in this case was approved by the supreme court. 88 Calif. Water Code, §§ 4000 to 4407. 87 Colo. Const., art. XVI, §§ 5 and 6. |