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Show 466 ADJUDICATION OF WATER RIGHTS IN WATERCOURSES has not already been made, proceed, as in this chapter provided, to make such a general determination."128 The Texas statute states, "Nothing in this subchapter [G, relating to water rights adjudication] prevents or precludes a person who claims the right to divert water from a stream from filing and prosecuting to a conclusion a suit against other claimants of the right to divert or use water from the same stream * * *."129 However, the statute continues on to state that "if the [Texas Water Rights Commission] has ordered a determination of water rights as provided in this subchapter, or if the commission orders such a determina- tion within 90 days after notice of the filing of a suit, the suit shall be abated on the motion of the commission or any party in interest as to any issues involved in the water rights determination."130 Thus, the Texas statutory adjudication procedure may be considered exclusive to the extent that a private action involving a determination of water rights is filed during the time that the Commission has ordered a statutory determination of those rights, or if the Commission orders such a determination within 90 days of the filing of the private action, and the Commission or any interested party moves to abate the private action as to the issues involved in the statutory determination. Transfer of Private Actions to Statutory Adjudication Proceedings The Oregon statutory adjudication provisions contain a section which states that if a suit is brought in the circuit court for a determination of water rights, the court may, in its discretion, transfer the case to the State Engineer for determination under the statutory adjudication procedure.131 The statutory adjudication provisions in Arizona and Nevada contain a similar provision.132 128 Utah Code Ann. § 73-4-18(1968). This provision was originally enacted in 1919 and provided simply, that in any civil action involving the use of water from any river system or water source, the court in its discretion could proceed as a general statutory determination if one had not already been made. Utah Laws 1919, ch. 67, § 38; R.S.U. 1933, § 100-4-18. This provision was changed to its current form in 1943. Utah Laws 1943, ch. 107, § 1. In the 1944 case of Salt Lake Gty v. Anderson, 106 Utah 306, 148 Pac. (2d) 346 (1944), discussed at note 127 supra, the court did not expressly mention the current version of the statute but it did refer to the former version by noting that in an earlier case it had been stated that "The majority of the court are of the opinion that it is a 'private' suit, which the lower court may, if it finds a general adjudication admissable, conduct as a general statutory adjudication under and pursuant to section 100-4-18, R.S.U. 1933." 148 Pac. (2d) at 349, quoting from Spanish Fork West Field In. Co. v. District Ct., 99 Utah 558, 562, 110 Pac. (2d) 344, 346 (1941). The former version of the statute is set out in 110 Pac. (2d) at 345. 129Tex. Rev. Civ. Stat. Ann. art. 7542a, § 7 (Supp. 1970). 130 Id. 131Oreg. Rev. Stat. § 539.020 (Supp. 1955). 132 Ariz. Rev. Stat. Ann. § 45-231(A) (1956); Nev. Rev. Stat. § 533.240(4) (Supp. 1967). |
