OCR Text |
Show 775 the making of a valid appropriation.401 Failure to make use of ap- propriated water for five successive years is to be considered an aban- donment of the same, and works a forfeiture of the water right.402 Procedure is provided for the declaration of such abandonment by the Board of Control after a hearing, on the initiative of any water user who might be affected thereby. The declaration is filed in court; if no objection is filed, judgment affirming the Board's order is issued; if there is objection, the water user who initiated the proceeding becomes plaintiff and the objector defendant, and the issue is tried as to whether or not the water right has in fact been abandoned.403 The water appropriation statute defines preferred uses as including rights for domestic and transportation purposes, and these include: First, drinking; second, municipal; third, steam engines and general railway use; and fourth, culinary, laundry, bathing, refrigeration, and heating plants. Likewise, the use of water for irrigation is to be pre- ferred to any use through "turbine or impulse water wheels" for power purposes. Existing rights that are not preferred may be condemned to supply water for preferred uses.404 Procedure is provided for changing a use to a preferred use under the direction of the Board of Control, just compensation to be paid if the change of use is approved.405 Riparian rights never have been recognized in Wyoming. The un- suitability of the common-law doctrine to local conditions, and the fact that such rule never had obtained in that State, which on the contrary had recognized a "different principle better adapted to the 401 Wyoming Hereford Ranch v. Hammond Packing Co., 33 Wyo. 14, 30-38, 236 Pac. 764 (1925). See Campbell v. Wyoming Development Co., 55 Wyo. 347, 388, 395, 100 Pac. (2d) 124 (1940). In 1949, in Laramie Rivers Co. v. LeVasseu, 65 Wyo. 414, 431, 202 Pac. (2d) 680 (1949), the court stated, citing the Wyoming Hereford case: "We have heretofore held that no water right may be initiated under our present laws except pursuant to a permit; that hence the requirement of such permit is mandatory." 402 Wyo. Gomp. Stats., 1945, § 71-701. 403 Wyo. Comp. Stats., 1945, §§ 71-702 to 71-707. The statute has been construed in several decisions. See Wyoming Hereford Ranch v. Hammond Packing Co., 33 Wyo. 14, 23-27, 236 Pac. 764 (1925); Van Tassel Real Estate & Livestock Co. v. Cheyenne, 49 Wyo. 333, 349-355, 54 Pac. (2d) 906 (1936); Horse Creek Conservation Dist. v. Lincoln Land Co., 54 Wyo. 320, 329-345, 92 Pac. (2d) 572 (1939); Campbell v. Wyoming Development Co., 55 Wyo. 347, 400-404, 100 Pac. (2d) 124 (1940). In such proceeding the burden of proving the issue of abandonment rests upon the one who petitions to have the water right declared abandoned: Ramsay v. Gottsche, 51 Wyo. 516, 529- 530, 69 Pac. (2d) 535 (1937). See also Laramie Rivers Co. v. LeVasseur, 65 Wyo. 414, 449, 202 Pac. (2d) 680 (1949). It was held in Ramsay v. Gottsche, supra, at 51 Wyo. 532, and in Scherck v. Nichols, 55 Wyo. 4, 23-24, 95 Pac. (2d) 74 (1939), that abandonment must be voluntary, and does not result if nonuse is caused by facts not under the appropriator's control. 404 Wyo. Gomp. Stats., 1945, § 71-402. 408 Wyo. Comp. Stats., 1945, § 71-403. See Newcastle v. Smith, 28 Wyo. 371, 205 Pac. 302 (1922). |