dissenting.
I concur in the opinion of the court now holding that appellant had standing to present his case in writing to the State Board of Control but dissent from the opinion of the court affirming the decision of the Board of Control which was not on the merits of the case.
The essential task presented in this case was a determination of legislative intent in amending W.S. 41-3-401(b) (Cum.Supp. 1992) in the following manner:
When any water user who might be benefitted by a declaration of abandonment of existing water rights or who might be injured by the reactivation of the water right, desires to bring about a *319legal declaration of abandonment, he shall present his case in writing to the state board of control. The board has exclusive original jurisdiction in water right abandonment proceedings. The board shall, if the facts so justify, refer the matter to the superintendent of the water division where the abandonment is claimed to have occurred for public hearing. The total absence of water to divert during an irrigation season precludes the inclusion of any such period of nonuse resulting therefrom in the computation of the successive five (5) year period under this section. The following persons have standing to petition the state board of control to declare the abandonment of existing water rights under this section.
(i) Ang person who has a valid adjudicated water right or is the holder of a valid permit from the same source of supplg which is equal to or junior in date of priority to the right for which abandonment is sought; or
(ii) The holder of a valid water right entitled to surplus water under W.S. 41-4-318 through 41-4-324, petitioning to abandon a water right from the same source of supply if the right sought to be abandoned has a priority date of March 1, 1945, or earlier, [emphasis added]
The legislature must have intended some change in prior law, both statutory and case law, by the amendment. The intent, after amendment of W.S. 41-3-401(b), seems clearly to be that one
(a) who has a valid, adjudicated water right
(b) from the same source of supply, and
(c) which is equal to or junior in date of priority
has standing.
The issue of standing is the only issue presented to us by appellant for determination. That is because the Board ruled against appellant upon the Board finding that appellant had no standing to bring his case. My preference would be that, having held that appellant had standing to present his case to the Board, that this case be remanded and appellant be allowed to present such evidence or additional evidence to establish that he might be benefitted by the abandonment and that the Board’s decision on that question then be on the merits.
I have some difficulty that our state of law is such that a holder of a water right might retain that right forever without ever having to use it.1 That can occur unless a holder of a junior water right can show benefit by abandonment or detriment. It is said our present state of law avoids disputes over water among neighbors. I question that policy statement. Disputes over water among neighbors are legion, never ending, intense, sometimes violent. Perhaps a bright line, clear “use the water or lose it” policy would lessen the struggle over precious water. At least all would understand clearly what is necessary to retain a water right. The present state of law does little more than protect vested interests that tie up water rights without using them, water rights that might go otherwise to beneficial use. If a holder of a water right does not use it for five years when water is available, that water right apparently is not needed. What good reason is there for denying abandonment? I can think of none. Our policy should be “use it or lose it.”
This case involves underground water. The wells in question have not been pumped for more than five years. That is admitted. In some cases the pumping equipment and sprinklers have been removed from the wells and the land. If these wells were abandoned, some other *320landowner might seek a well permit for water that could be put to beneficial use. Surely that policy better serves our state, its citizens and our need to put water to beneficial use. With old well water rights existing in perpetuity, ready to be reactivated at any time, interest in other development is lost.
Finally, I recognize that when this appellant who has standing presents his case to the Board, it may, under the present state of law, find that he might not be benefitted by abandonment or be injured by reactivation of the water right and decide the case against appellant. While my preference is that abandonment results from nonuse, I recognize that is not the present state of law when abandonment is sought by a junior appropriator.
Because I would remand this case to be decided on the merits, I dissent.
. I recognize that W.S. 41-3-402(a) (Cum.Supp. 1992) allows the state engineer to seek abandonment of water rights if he chooses to do so. But, being practical, I know that he is not going to run around the state abandoning unused water rights. First, he has more pressing, current business; and, secondly, if the unused water rights are not a current problem, why bother? So, why not allow a party, with standing, who has an interest, to do what the state engineer can do — seek abandonment of unused water rights — and at no cost to the State? This is not a novel idea. I recommend it to the legislature. The practical effect of the present state of law is that old, unused water rights will continue to exist forever.