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Show 710 TEXAS the State's water resources. In a 2-year period, 76 permits and certi- fied filings were cancelled. The constitutionality of the statute has recently been upheld by the Texas Supreme Court55 on the ground that, while water rights are "vested" property interests, no one has a vested right to nonuse, which is in fact wasteful. Also, it was held that the statute does not contravene the State constitutional prohibi- tion against retroactive legislation. In all permits, the court stated, there is an implied condition that the water will be used for a bene- ficial purpose. Under this construction, water rights covered by the statute would not automatically terminate after ten years of nonuse. A cancellation proceeding might be instituted by the commission, but the court construed the statute as creating a conclusive presump- tion of abandonment after ten years of nonuse. Cancellation proce- dures require notice and hearing to the permittees whose rights are challenged. Although riparian water rights may not be lost by abandonment,56 they may be lost by prescription.57 estoppel,58 and under certain cir- cumstances by the use of the water on nonriparian land.59 In 1967, Texas adopted the Water Rights Adjudication Act.60 A portion of this statute authorizing the adjudication of all water rights outstanding on a stream or a segment thereof was discussed in section 2.2.b, above. In addition to the general determination pro- ceedings, the act also provided for a system of recording claims to water rights covered by the statute. Each claimant is required before September 1, 1969, to file a state- ment with the commission setting forth the location and the nature of the water right claimed, the stream or watercourse and the river basin in which the right is claimed, the date of commencement of works, the dates and volumes of use of water and any other pertinent information about the water right claimed.61 It is important to note the broad coverage of the statute, because it covers: (1) riparian water rights; (2) special claims under section 5.151 to impound, divert, or use water for other than domestic or livestock purposes; (3) claims under the Irrigation Acts of 1889 and 1895 which were not filed as required by the 1913 statute ;62 and (4) "other claims of water rights except claims under permits or certified filings." The statute further provides that "failure to file a sworn state- ment in substantial compliance with this section extinguishes and bars any claim of water rights to which this section applies." The act should be consulted for details relating to publication of notice of the requirements of the act, and for a few exceptions relating to work performed recently by riparian owners. The act recites that the provisions thereof are necessary for "conservation and best utili- zation of the water resources of the State," but the constitutionality 55 Texas Water Rights Gomm'n v. Wright, 464 S.W. 2d 642 (Texas Sup. Ct. 1971), 3 St. Mary's L.J. 136 (1971) ; 23 Baylor L. Rev. 657 (1971). 56 W. Hutchins, Note 3, at 303. 57 Martin v. Burr, 111 Texas 57, 228 S.W. 543 (1921). 58 W. Hutchins, Note 1, p. 2, at 462-64. ™Watkins Land Co. v. Clements, 98 Texas 597, 86 S.W. 733 (1905). 00 Sees. 5.301 to 5.341. ^Sec. 5.303. 62 Water rights acquired under the 1889 and 1895 acts, as vested rights, cannot be extinguished by failure to file the certified filings required under the 1913 act. See the Slaughter case in Note 4. |
