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Show 520 THE APPROPRIATIVE RIGHT courts discussed them in several related actions pertaining to waters of the San Joaquin River.403 New Mexico.- A section of the water appropriation statute provides that water may be transferred from one stream or drainage into another and diverted therefrom, less transmission losses determined by the State Engineer. Another section makes it unlawful to divert the waters of any public stream for use in a valley other than that of such stream, to the impairment of subsisting prior appropriations.404 North Dakota.-The State Water Conservation Commission has authority to conserve and develop waters within the natural watershed areas of the State and, subject to vested and riparian rights, to divert waters from one watershed area to another watershed area, and the waters of any river, lake, or stream into another river, lake, or stream.405 Texas. - The legislature had undertaken to protect holders of rights to the use of water originating in a given watershed from such exportation of the water therefrom as will adversely affect their rights. The water rights statute makes it unlawful to divert any of the flow, underflow, or stormflow of any watercourse or watershed into any other to the prejudice of any person or property within the original watershed. Before any water may be so taken application must be made to the Texas Water Rights Commission for a permit therefor, which is not to be issued until after notice and hearing by the Commission as to the rights that may be affected thereby. Appeal may be taken from the Commission's decision to the courts under the usual procedure for judicial review. Penalties are provided for violations of these provisions.406 Procedure for obtaining a permit to divert water from a watershed for use in another is noted and particularized in the rules and regulations of the Commission.407 The Texas Supreme Court has refused to construe this statute's language so as to "have the intolerable consequence of defeating a project promising *03Rank v. (Krug) United States, 142 Fed. Supp. 1, 149-154 (S. D. Cal. 1956); Rank v. (Krug) United States, 155 Fed. Supp. 872, 874 (S. D. Cal. 1957); State of California v. Rank, 293 Fed. (2d) 340, 352-353, 360 (9th Cir. 1961); State of California v. Rank, 307 Fed. (2d) 96 (9th Cir. 1962); City of Fresno v. State of California, 372 U. S. 627, 630 a963);Dugan v. Rank, 372 U. S. 609, 617 (1963). 404N. Mex. Stat. Ann. § § 75-5-24 and 75-7-5 (1968). Another section (75-5-27), in order, inter alia, to distribute water "as equitably as possible without interfering with vested rights, recognizes the natural right of the people living in the upper valleys of the several stream systems to impound and utilize a reasonable share of the waters which are precipitated upon and have their source in such valleys and superadjacent mountains," provided, however, that the exercise of this right is subject to the laws governing the appropriation of water. 40SN. Dak. Cent. Code Ann. § 61-02-14(l)(d) (Supp. 1969). 406Tex. Rev. Civ. Stat. Ann. arts. 7589, 7591 (1954), 7477, § 12, 7590 (Supp. 1970). 407Tex. Water Rights Comm'n, "Rules, Regulations and Modes of Procedure," rule 620.1 (1970 Rev., Jan. 1970). |