| OCR Text |
Show 314 APPROPRIATION OF WATER Constitutionality of the legislation.-(1) Exercise of the State's police power. Provisions for the appropriation of water under administrative control have been before the courts of many States on various points. The fundamental principle that the State has the right to provide for the appropriation of unappropriated public waters and to control the issuance of appropriative water rights has not been denied by any high court in the West. In many cases, the validity of the statutory provisions for acquisition of appropriative rights appears to have been taken for granted. In others, the court expressed its general approval, although some particular item may have been considered objectionable. As discussed later, some features of the adjudication statutes were held unconstitutional. Aside from the protection of any proprietary interest that the State might have in the waters of its public streams, the State and Federal courts in Nevada agreed that regulation of such waters, including their appropriation, is clearly within the lawful exercise of the State's police power.442 The Idaho Supreme Court held it to be settled law that the legislature might regulate the appropriation and use of public waters.443 This is not to be confused with the Idaho rule that the statutory procedure in appropriating water is not exculsive; nor with the unconstitutionality of certain features of the statutory adjudica- tion procedure, noted below. Constitutionality of the Wyoming water administration law was considered at length and was sustained by the supreme court of that State.444 "That the state may supervise and control the appropriation, diversion and distribution of the public waters, and impose that duty upon administrative officers, is settled by our former decisions, and is equally well settled in other states, where the doctrine of prior appropriation of water prevails."445 By such supervision, no rights of private property are invaded. Under the police power, in the interest of the public welfare, and for the protection of private as well as public rights, said the court, property intended to be used for no other purpose than that of diverting public waters is regulated. The same result was reached in Nebraska with respect to the water rights law of that jurisdication, which was based upon that of Wyoming.446 The California Supreme Court held that the conclusions arrived at by the administrative agency in determining due diligence and other matters involved ™Ormsby County v. Kearney, 37 Nev. 314, 336-338, 142 Pac. 803 (1914); Humboldt Land & Cattle Co. v. Allen, 14 Fed. (2d) 650, 653 (D. Nev. 1926); Humboldt Lovelock Irr. Light & Power Co. v. Smith, 25 Fed. Supp. 571, 573, 575 (D. Nev. 1938). wBig Wood Canal Co. v. Chapman, 45 Idaho 380, 401-402, 263 Pac. 45 (1927). ""Farm Investment Co. v. Carpenter, 9 Wyo. 110, 132-139, 61 Pac. 258 (1900); Wyoming Hereford Ranch v. Hammond Packing Co., 33 Wyo. 14, 31-36, 236 Pac. 764 (1925). *ASHampv. State, 19 Wyo. 377, 391-392, 118 Pac. 653 (1911). 446 Farmers' Irr. Dist. v. Frank, 72 Nebr. 136, 138-140, 100 N. W. 286 (1904). |
