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Show 178 WATER RIGHTS SYSTEMS PERTAINING TO WATERCOURSES be acquired. Idaho is a definite exception; there, at his option, an intending appropriator may acquire an equally valid right by following either the "constitutional" procedure of diverting water and applying it to beneficial use, or the formal statutory procedure.91 The latter, while thus not exclusive, may be advantageous to an appropriator in the matter of establishing the date of priority. In Montana, the statutory procedure is exclusive as to appropriations of water from adjudicated streams made after the date of the amended statute.92 However, there is no control over the appropriation of water centered by statute in the State administrative organization. Whatever the method of determining water rights-a form of property- jurisdiction in the last analysis is necessarily vested in the courts. For example, although the powers of the Wyoming Board of Control are quasi-judicial,93 it is true that appeal from the Board's determinations may be taken to the courts.94 In no event are individuals precluded from recourse to the courts for protection of their water rights. These matters are discussed in more detail in chapter 7 and the respective State summaries in the appendix. Modification of the Strict Priority Rule An essential feature of the appropriation doctrine as originally practiced in the West was the rule that he who is first in time is first in right. However, in the economic and legal development of the doctrine there have been engrafted upon the procedure for acquiring new appropriative rights so many important and controlling provisions that the simple formula "first in time, first in right" has tended to become a qualified rather than an absolute rule. To preclude possible misapprehension as to the inelasticity of the rule, which amounted to dogma in the earlier historical phases but has since yielded to development pressures, several matters must be emphasized. Priorities in time of acquiring water rights.--The principle of priority in time of appropriating water still prevails in general in the acquisition of new water rights, but with certain important statutory exceptions in various States. Among these are: (1) Authority vested in the administrator to reject an application to appropriate water that is deemed to be a menace to the safety or against the interests and welfare of the public. (2) Preferences accorded to certain uses of water as among pending applications to appropriate water, regardless of relative dates of filing, and preferences even in favor of prospective applications as against those already filed. (3) Preferences and reservations in favor of municipal uses. (4) Withdrawal of waters from general 91 Idaho Const., art. XV, § 3; Code Ann. § 42-101 et seq. (1948). Nielson v. Parker, 19 Idaho 727, 730-731, 733, 115 Pac. 488 (1911). 92 Mont. Laws 1921, ch. 228, Rev. Codes Ann. §§ 89-829 to -844 (1964), construed in Anaconda Nat'l Bank v. Johnson, 75 Mont. 401, 411, 244 Pac. 141 (1926), followed and applied in Donich v. Johnson, 11 Mont. 229, 246, 250 Pac. 963 (1926). 93Wyo. Stat. Ann. § 41-165 (1957). 94Id. § § 41-193 and 41-216. |