| OCR Text |
Show 366 APPROPRIATION OF WATER Completion of Appropriation Elements of a Valid Appropriation The elements of a valid appropriation of water were thus stated by a California court in 1920:701 To constitute a valid appropriation of water, three elements must always exist: (1) An intent to apply it to some existing or contemplated beneficial use; (2) an actual diversion from the natural channel by some mode sufficient for the purpose; and (3) an application of the water within a reasonable time to some beneficial use. * * * This undoubtedly expresses the consensus of the western judiciary, not only when the opinion was written but currently. However, conflicting views were expressed in earlier cases. Contrasts appear between administration water statutes and some of those that preceded them. The doctrine of relation was an important factor. In essence, the doctrine of relation contemplates the performance of two acts by the intending appropri- ator at different times in the process of appropriating the water. If the doctrine is applicable to a given set of circumstances, its effect is that the priority of appropriation relates back from the time of performing one act-completion of appropriation-to that of a previous act-initiation of the right. It is obvious, therefore, that in order to determine the question of applicability of this doctrine to the facts of a particular appropriation, both "initiation" and "completion" must be clearly defined. The later discussion of the doctrine of relation herein lays stress on questions pertaining to initiation of the right. Here we emphasize questions of completion. What Constitutes Completion of an Appropriation Development of the rules.-(Y) Wiel, writing in 1911, stated that:702 Throughout the law of appropriation there is now occurring a transition regarding the attributes of a right of appropriation within itself, irrespective of any question of riparian rights or of Federal rights. The transition is from a possessory system, based upon possession of the stream, to a 'particular purpose system' based upon the requirements of a specific use, such as the 701 Simons v. Inyo Cerro Gordo Min. & Power Co., 48 Cal. App. 524, 537, 192 Pac. 144 (1920). See also the discussion at notes 707 and 708, infra. Some comparable expressions: Hoogendorn v. Nelson Gulch Min. Co., 4 Alaska 216, 220 (1910); Clough v. Wing, 2 Ariz. 371, 382-383, 17 Pac. 453 (1888); Larimer County Res. Co. v. People ex rel. Luthe, 8 Colo. 614, 616-617, 9 Pac. 794 (1886); Walsh v. Wallace, 26 Nev. 299, 327, 67 Pac. 914 (1902); Snow v. Abalos, 18 N. Mex. 681, 694, 140 Pac. 1044 (1914); Gates v. Settlers'Mill, Canal & Res. Co., 19 Okla. 83, 89, 91 Pac. 856 (1907); Hutchinson v. Stricklin, 146 Oreg. 285, 297, 28 Pac. (2d) 225 (1933); Tanner v. Provo Res. Co., 99 Utah 139, 149, 98 Pac. (2d) 695 (1940);Moyer v. Preston, 6 Wyo. 308, 321, 44 Pac. 845 (1896). 702 Wiel, S.C., "Water Rights in the Western States, 3d ed., vol. 1, § § 139 and 362 (1911). |
