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Show 634 EXERCISE OF THE APPROPRIATIVE RIGHT required.204 There are similar statutory provisions in Oklahoma and South Dakota which, however, pertain only to water used for irrigation purposes.205 The Wyoming statute, with various exceptions,206 does not authorize an appropriator to change the place of use of appropriated direct-flow water and declares that water rights for the direct use of natural unstored streamflow can not be detached from the lands or place of use for which acquired.207 This, however, does not apply to reservoir water rights. Unless attached to particular lands by deed or other instruments of conveyance, reservoir rights may be transferred for use elsewhere.208 The Nebraska legislation may constitute another exception to the usual provisions regarding changes in place of use although its effect, as construed by the courts, is rather unsettled. This is discussed in chapter 8 under "Property Characteristics-Appurtenance of Water Right to Land-Appurtenant and not Generally Severable Without Loss of the Right." The limitations on taking water out of the watershed or area of origin, noted in chapter 8 ("Elements of the Appropriative Right-Diversion of Water From Watershed or Area of Origin"), necessarily apply to changes in place of use as well as to location of the original place of use. Some judicial points.-In a very early decision, the California Supreme Court saw no reason why a miner's appropriative right should be impaired or forfeited by a mere change in the place of use of the water from one mining 20AId., § 533.325 (Supp. 1967). 20SOkla. Stat. Ann. tit. 82, § 34 (1970); S. Dak. Comp. Laws Ann. § § 46-5-34 and 46-5-35 (1967). These expressly provide that no such change may be made if it will be detrimental to existing rights. 206These include acquisition of water for preferred uses or for highway and certain other temporary purposes, correction of errors in permits and certificates of appropriation, certain voluntary exchange agreements, and replacement of irrigated lands submerged by certain reservoirs. Wyo. Stat. Ann. § §41-2 to -8 (1957), -9 to-10.2:1 (Supp. 1969). Pre-1909 water rights perhaps are also excepted. This was discussed but left undecided in State v. Laramie Rivers Co., 59 Wyo. 9, 136 Pac. (2d) 487, 496 (1943), referring inter alia to Hughes v. Lincoln Land Co., 27 Fed. Supp. 972 (D. Wyo. 1939), and United States v. Tilley, 124 Fed. (2d) 850, 857 (8th Cir. 1942). Hunziker v. Knowlton, 78 Wyo. 241, 322 Pac. (2d) 141 (1958), rehearing denied, 324 Pac. (2d) 266 (1958), apparently indicates that pre-1909 water rights ordinarily could have been transferred before 1909 but it found it unnecessary to decide the question of attempted transfers of such rights after the 1909 legislation restricting transfers. Other possible exceptions may include authorized rotation agreements and the acquisition of water for fish hatcheries and public fishing areas and by irrigation districts, water conservancy districts, water and sewer districts, and watershed improvement districts. In this regard, see Trelease, Frank J., and Lee, Delias W., "Priority and Progress-Case Studies in the Transfer of Water Rights," 1 Land and Water Law Rev. 1 (1966); Trelease, Frank J., "Transfer of Water Rights-Errata and Addenda-Sales for Recreational Purposes and to Districts," 2 Land and Water Law Rev. 321 (1967). a07Wyo. Stat. Ann. § § 41-2 to -4 (1957) and-213 (Supp. 1969). 208Wyo. Stat. Ann. § 41-37 (1957). |