specially concurring.
Statutes presently existing do not answer the question to be resolved in this case, which is whether a supplemental water right may be abandoned through non-use. I can agree with a rule that would provide that a failure to use the supplemental right when it is needed any time during a five-year period can result in abandonment. My problem with application of the rule to this case of first impression is that appellee suffers the loss of his supplemental water right without knowing beforehand what use was required to retain the supplemental water right. And now it is too late to make such use of the right.
“The general rule from time immemorial is that the ruling of a court is deemed to state the true nature of the law both retrospectively and prospectively. In civil cases, at least, constitutional law neither requires nor prohibits retroactive operation of an overruling decision, but in the vast majority of cases a decision is effective both prospectively and retrospectively, even an overruling decision. Whether the general rule should be departed from depends on whether a substantial injustice would otherwise occur,”
Harvey By and Through Harvey v. General Motors Corp., 739 P.2d 763, 765 (Wyo.1987) (quoting Malan v. Lewis, 693 P.2d 661, 676 (Utah 1984)).
The equities of this particular case are closely balanced. But, because appellees obtained their needed supplemental water from a different source, the balance seems to weigh more heavily on the side of appellant. Were it otherwise, I would favor prospective application only of the rule enunciated in this case.