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Show 322 APPROPRIATION OF WATER held to be the proper remedy for reviewing issuance of a permit despite protests on the ground of unavailability of unappropriated water.492 In most cases, the court to which such an appeal is taken is the trial court of the appropriate county. From this court's decision, appeal lies to the State supreme court. Nebraska allows an interested party who is dissatisfied with any decision or order of the Department of Water Resources to institute proceedings in the State supreme court to reverse, vacate, or modify the order. The procedure in such action is governed by that pertaining to appeals and error proceedings from the district court to the supreme court.493 In Wyoming, an applicant for a permit may appeal from the action of the State Engineer to the Board of Control. From the board's decision, appeals may be taken to the district court of the county in which the greatest use of water is proposed to be made.494 A few water statutes specify that the trial on review of an administrative action shall be de novo (anew). Although in New Mexico the proceeding on appeal is de novo, evidence taken in hearings before the State Engineer may be considered as original evidence subject to legal objection.495 A Texas statute providing for de novo trial in suits for review was declared unconstitutional by the State supreme court. This, however, did not render invalid other sections of the act in which there remained a complete and workable law under which review of the reasonableness of the administrative order might be had under the substantial evidence rule.496 The Utah legislation providing for a plenary review in the district court in which the hearing proceeds as a trial de novo has been considered by the supreme court in several cases. Use of the terms "review" and "trial de novo" indicate that the trial court shall review only the issues of law and fact that were determinable by decision of the State Engineer497 The court does not 492 Temescal Water Co. v. Department of Public Works, 44 Cal. (2d) 90, 99-100, 106, 280 Pac. (2d) 1 (1955). 493Nebr. Rev. Stat. § 46-210 (1968). 494Wyo. Stat. Ann. § 41-216 (1957). 49SN. Mex. Stat. Ann. § 75-6-1 (1968). One of the conclusions reached by Clark, R.E., "New Mexico Water Law Since 1955," 2 Natural Resources J. 484, 560 (1962), is: "The precise nature of the de novo appeal to the district court should be clarified by the legislature. At the present time the proceeding seems to be somewhere between an original proceeding and an appeal on the record with evidence admissible and merited weight given to the State Engineer's decision. This is not what the statute specifies and is not what good administrative and judicial practice recommends." A 1967 constitutional amendment, which does not necessarily clarify the point raised by Clark, provides, "In any appeal to the district court from the decision, act or refusal to act of any state executive officer or body in matters relating to water rights, the proceeding upon appeal shall be de novo as cases originally docketed in the district court unless otherwise provided by law." N. Mex. Const., art. XVI, § 2. 496Southern Canal Co. v. State Board of Water Engineers, 159 Tex. 227, 318 S. W. (2d) 619 (1958), affirming 311 S. W. (2d) 938 (Tex. Civ. App. 1958). 497 United States v. District Court, 121 Utah 1.7.11. 238 Pac. (2d) 1132 (1951). |
