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Show Mississippi 427 ting a stream or other watercourse.34 Therefore, those riparian rights which existed at the time the act was adopted can be acquired by purchase of the riparian land. Also, riparian rights can normally be severed and transferred independently of the land itself. B. PROTECTION OP RIPARIAN USERS For constitutional reasons perhaps, the statute protects riparian uses which existed at the effective date of the act (April 6,1956). The term "riparian" is not used in the statute; rather, an "appropriation" is defined as the right to continue to use water actually put to a beneficial use on April 6, 1956, or within a period of 3 years prior to that date.35 This may mean that riparian rights (uses) which are preserved under the act actually become "appropriations." Water users in the two classifications mentioned above are required to file their claims with the Board of Water Commissioners in order to pre- serve their claims. It seems clear that they are protected only to the extent that beneficial use was made of the water at the prescribed times. The statute also provides for the preservation of certain claims acquired or initiated after April 1956, but, unfortunately, the section is drafted so that there are actually two inconsistent cutoff dates (April 1, 1958 and December 31, 1958). These dates seem to be appli- cable to water users in all three categories (i.e., uses in existence on April 6, 1956; uses in existence at any time within 3 years prior to April 6, 1956; and uses initiated between April 6, 1956 and either April 1, 1958 or December 31, 1958, whichever of the latter dates is applicable). The exact language which is the source of this confusion should be noted.36 It is entirely reasonable to suggest that the State Supreme Court would adopt the last date as the cutoff for filing. Assuming this to be the case, then, after December 31, 1958, the Board will accept and recognize only applications for permits. The statute also fails to indicate whether riparians who preserve their claims possess an order of priority among themselves. Those who were using water on April 6? 1956, or within 3 years prior thereto, probably do not have individual priority dates. Conflicts between them probably will have to be worked out on some basis of "correlative" or "reasonable use" rights under the riparian system.37 For those who initiated their claims after April 6,1956, and before December 31, 1958, it is not quite so clear. They may not be entitled to the same constitutional protection that is accorded to the earlier claimants. The act does seem to protect them, however, but it is un- 34 Lilea v. Oawthorn, 78 Miss. 559, 29 So. 834 (1900) ; Am. Sand & Gravel Co. v. Rushing, 183 Miss. 496, 14 So. 60 (1938). 35iSec. 5956-02. 89 Sec. 5956-04 provides : "After April 1, 1958, no right to appropriate or use water subject to appropriation shall be initiated or acquired except upon compliance with the provisions of this act, and no person shall take water from a stream, lake or other watercourse without having a valid right to do so. Provided, however, that any person or persons claiming their rights under section 2(g)(2), chapter 167, Laws of 1956 (5956-02), where that person had begun to make beneficial use of water at the time of the effective date of chapter 167, Laws of 1956 (5956-01 et seq.), which was April 6, 1956, or within three (3) years prior thereto, or after April 6, 1956, until December 31, 1958; and after said date of December 31, 1958, claims may be filed with the Board, but the priority of all claims will be determined by the date the claim is received by the Board." 87 See, e.g., Waaserburger v. Coffee, 180 Neb. 149, 141 N.W. 2d 783 (1966), modified in part in 180 Neb. 569, 144 N.W. 2d 209 (1966). |
