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Show 586 THE APPROPRIATIVE RIGHT It is evident, then, that a permit to appropriate water represents an inchoate right. Formerly, in California, an inchoate right could be obtained by an applicant prior to issuance of the permit, because it was then the judicial view that the State administrative agency had no discretion to issue or deny a permit; that depending upon the availability of unappropriated water and the sufficiency of an application, its duty to grant or deny was mandatory.722 However, as a result of statutory changes the administrative agency now exercises a broad discretion in determining whether the issuance of a permit will best serve the public interest. This determination requires an administrative adjudication which, in any case in which an application is protested, may be made only after a hearing.723 In the Foreword to the "Rules, Regulations and Information Pertaining to Appropriation of Water in California," issued by the State Water Rights Board in 1960, it was stated that:724 It should be understood that neither the filing of an application nor its approval by the board will give one a water right. Issuance of permit merely signifies consent of the State that unappropriated water may be appropri- ated and right acquired in accordance with law and the terms of the permit.* * * In 1964, the State Water Rights Board issued, in place of the 1960 edition, a pamphlet entitled "Regulations and Information Pertaining to Appropriation of Water in California," which has no Foreword and does not repeat this statement. (A similar pamphlet was issued in 1969 by its successor, the State Water Resources Control Board.) However, the correctness of this information has not diminished with the passage of time. The Idaho Supreme Court has thus expressed its views as to the nature of a permit issued by the State: The right given therein is merely a contingent right, which may ripen into a complete appropriation, or on the other hand may be defeated by the failure of the holder to comply with the requirements of the statute. Hence, it is not an appropriation of water.725 The permit simply evidences the consent of the State that the applicant may proceed under the law and make an appropriation of public water.726 The applicant obtains from a permit no right to the use of water unless he complies substantially with every provision of the statute affecting the issuance of the permit and fulfills all the conditions and limitations therein; but such compliance initiates a right to the use of water in the applicant.727 Until all the requirements have been complied with, the holder of the permit has nothing but an inchoate right; but 122Tulare Water Co. v. State Water Commission, 187 Cal. 533, 536, 202Pac. 874 (1921). 723 Temescal Water Co. v. Department of Public Works, 44 Cal. (2d) 90, 99-100, 280 Pac. (2d) 1 (1955). 724Cal. Admin. Code, tit. 23, ch. 2.1, subchs. 1 and 2 (1960). 725Big Wood Canal Co. v. Chapman, 45 Idaho 380, 401-402, 263 Pac. 45 (1927); Speer v. Stephenson, 16 Idaho 707, 716, 102 Pac. 365 (1909). 726Marshall v. Niagara Springs Orchard Co., 22 Idaho 144, 153, 125 Pac. 208 (1912). 727 Washington State Sugar Co. v. Goodrich, 27 Idaho 26, 38, 147 Pac. 1073 (1915). |