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Show 448 ADJUDICATION OF WATER RIGHTS IN WATERCOURSES adjudication and supervision over diversion, but a concept never before legislated in the West-administrative control over the appropriation of the State's unappropriated water. The Wyoming Constitution created, for the purpose of administering these functions, a Board of Control consisting of the State Engineer as president and the superintendents of the four water divisions.11 Mead held the office of Wyoming State Engineer for 8 years, during which he succeeded-despite great difficulties-in getting the State administration embarked upon a policy of continuing solutions of its constantly arising water rights problems. From Colorado and Wyoming the concept of a special statutory procedure for adjudicating rights to the use of stream flow spread throughout the mainland Western States. Characterization and Validity of the Administrative Function Separation of powers among the three fundamental branches of American State governments-legislative, executive, and judicial-has led to a number of questionings as to the constitutional authority of officials in the executive branch to act in a judicial capacity in establishment of appropriative water rights, chiefly because of the powerful factor of priority in acquisition of such rights. Although the originally invariable factor of "first in time, first in right" has been considerably qualified in the matter of obtaining permits to appropriate water under the several State water codes,12 it had a dominant place in the development of western water law. Jurisdiction over the acquisition of appropriative rights has generally become an administrative function. Likewise, supervising the distribution of water pursuant to the terms of court decrees has generally become an administrative function. But is the adjudication of water rights-private property rights-solely judicial, or may it be constitutionally delegated to administrative officials acting in a quasi-judicial capacity? In Wyoming, the statutory adjudication proceedings are carried out by administrative officers,13 and their adjudications are final unless appealed to the courts.14 The Constitution of Wyoming created a Board of Control and vested it with supervision of the waters of the State and of their appropriation, distribution, and diversion.15 Adjudication of rights was not in the list specifically named in the constitution, but the first State legislature vested the 11 Wyo. Const, art. VIII, § § 2,4, and 5. 12 See, in chapter 7, under "Methods of Appropriating Water of Watercourses," "Priority of Appropriation," and "Restrictions and Preferences in Appropriation of Water." 13Wyo. Stat. Ann. § 41-165 et seq. (1957). l4Id. § 41-190. 15 Wyo. Const, art VIII, § 2. |
