OCR Text |
Show 462 ADJUDICATION OF WATER RIGHTS IN WATERCOURSES Arizona statute refers to waters of a stream or water supply,111 while the Washington statute refers to "any waters within the state."112 The Texas statute provides that the proceeding may encompass any stream or segment of a stream.113 In Idaho, the district judge may determine whether the waters in the water system to be adjudicated are interconnected and whether the State Reclama- tion Engineer's petition embraces some waters which are not tributary or excludes some waters which should be included to achieve adjudication of all rights that might be affected thereby, and if funds are available for the engineer's investigation, the judge shall issue an order defining the boundaries of the water systems to be adjudicated and authorize the engineer to begin his investigation and determination of the various rights existing in the system.114 In some States, a State agency has been directed or authorized to survey the State area by area and to initiate adjudication proceedings upon the completion of each survey.lls This would be subject, of course, to the availability of funds for such purposes. Among other important variations, there are variations in the extent to which all or fewer water rights claimants within the encompassed area are brought into the proceeding and are bound by the final adjudication.116 In some respects a statutory adjudication proceeding may be less compre- hensive than an ordinary civil action. For example, in a statutory adjudication proceeding, the administrative agency or court is confined to the subject matter covered by the statute, as construed by the court, and is without jurisdiction to hear or determine other matters.117 Moreover, in a statutory adjudication proceeding, if an administrative agency makes the determination of water rights it is not also authorized to grant injunctive relief or damages. The Wyoming Supreme Court, in an action to quiet plaintiffs title to water rights as against a number of defendants, 111 Ariz. Rev. Stat. Ann. § 45-231(A) (1956). 1I2This may embrace waters in more than one county. Wash. Rev. Code § 90.03.110 (Supp. 1961). U3Tex. Rev. Civ. Stat. Ann. art. 7542a, § 5(a) (Supp. 1970). 114Idaho Code Ann. § 42-1407 (Supp. 1969). 115See, e.g., the Wyoming provision discussed in note 260 infra and the North Dakota provision discussed at notes 320-321 infra. In Colorado, division engineers, with the approval of the State Engineer, are to make tabulations of decreed water rights within each of the seven divisions in the State, which are to be approved by a water judge with or without modification. Such proceedings "shall be considered general adjudication proceedings." See the discussion at notes 238-252 infra. 116 In this regard compare the Wyoming and Colorado procedures discussed under "Statutory Adjudication Procedures in Selected States," infra. 117In this regard, see, e.g., the discussion at notes 306-307 infra, regarding a possible limitation to water rights initiated before 1909 in Oregon; at notes 79-84 supra, regarding "existing rights" in Alaska; and at notes 202 and 285 infra, regarding "ditches" in Colorado and Wyoming, respectively. |