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Show 346 APPROPRIATION OF WATER which parties who may be affected are made defendants.594 At the conclusion of the trial, the court may enter either an interlocutory or a permanent decree allowing the appropriation subject to all prior decrees.595 By interlocutory decree, the court may prescribe the conditions under which both the work necessary to a completion of the right and the time of completion may be prescribed. On full compliance the court enters its decree establishing the appropriation.596 Failure to comply with the statutory provisions deprives the appropriator of the right to use water as against a subsequent appropriator mentioned in or bound by a decree of the court.597 The Montana Supreme Court holds that the statute is applicable equally to appropriations of so-called normal flow and to those of flood or excess waters in the stream.598 Water stored in a reservoir pursuant to an appropriation of water of an adjudicated stream is protected by the statute, when released into the stream from storage, from being identified as part of the normal flow.599 It was the legislature's intention that there shall be a substantial compliance with the requirements of this statute. Hence, it provides the exclusive method for appropriating water from an adjudicated stream or other source. One who thus appropriates adjudicated water is simply a junior appropriator, with the rights and disabilities incident to one whose water right thus decreed is subject to the superior rights adjudicated in the original decree.600 Not Exclusively Administratively Controlled Idaho.-In this State, there are two methods of equal validity of appropriating water. One of these is the statutory method. This is comparable to the procedures contained in the water rights statutes of the other 15 States in which administrative supervision over water appropriations is the established procedure and, in probably most cases, the exclusive one. These matters have been discussed previously in this chapter. The other Idaho method of making an appropriation of water, established by the judiciary is the "so-called constitutional, as distinguished from the statutory method of appropriating water."601 The constitutional aspect relates to a declaration in the original constitution of 1889 that "The right to divert and appropriate the unappropriated waters of any natural stream to beneficial uses shall never be denied."602 In 1928, long after this method was established, this sentence was amended by adding thereto a clause "except that the state may regulate and limit the use thereof for power purposes." The 594Id. § 89-832. S9Sld. § 89-831. 596Id. § 89-834. S97Id. § 89-837. S9*Quigley v.Mdntosh, 88 Mont. 103, 107-108, 290 Pac. 266 (1930). S99Mont. Rev. Codes Ann. § 89-829(3) (1964). 600Quigley v.Mdntosh, 88 Mont. 103,109, 290 Pac. 266 (1930). 601 Pioneer Irr. Dist. v. American Ditch Assn., 50 Idaho 732, 737, 1 Pac. (2d) 196 (1931). 602 Idaho Const., art. XV, § 3. |
