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Show 368 APPROPRIATION OF WATER In a very early case, it was said that title to the water right is not perfected until the ditch has been so far completed as to convey the water.706 Six decades later a district court of appeal, after making the unqualified statement quoted above at the beginning of this subtopic, tended to hedge with the following:707 The third, and perhaps the most essential, element to the legal appropriation of water is its application within a reasonable time to some useful purpose of industry. It is, perhaps, not strictly true that this application is essential to the appropriation; for if diversion is actually made with intent to use the water for such purposes, the appropriation is then complete in the sense that the rights of the appropriator cannot be defeated by acts done or appropriations attempted to be made by others after such diversion and while he is proceeding with reasonable diligence to apply the water appropriated by him to the purpose contemplated.* * * As against an intervening appropriation under the California Civil Code, the final act in an appropriation made without conforming to the code requirements appears to have been application to a beneficial use of the maximum quantity of water so diverted and applied prior to posting of notice by the Civil Code appropriator. In the latter case, the court held that the water right of a party who had not posted notice (as against one who had followed the code) "could not exceed the greatest amount of water ever actually taken by him and applied to a beneficial use or uses prior to the time when others appropriated waters from the springs. * * * Actual diversion (the taking of possession) creates the right; actual use (the amount in possession) measures the right. * * * "708 Another point of view was that a diversion of water ripened into a valid appropriation only where the water so diverted was utilized by the appropri- ator for a beneficial purpose.709 (4) Idaho. Under the preadministration acts of 1881 and 1899, the appropriation was complete on completion of construction and conducting of the water to the point of intended use, subject to loss of the right by failure to apply the water to a beneficial use within a reasonable time.710 (5) Water permit statutes. Under these statutes, the final act performed by the permittee in completing his appropriation is application of the water to the 106Kimball v. Gearhart, 12 Cal. 27, 29-30 (1859). 707Simons v. Inyo Cerro Gordo Min. & Power Co., 48 Cal. App. 524, 537, 192 Pac. 144 (1920). 10SId. at 537-538. 709Hewitt v. Story, 64 Fed. 510, 514-515 (9th Cir. 1894); Miller & Lux v. Rickey, 127 Fed. 573, 585 (C.C.D. Nev. 1904);Nevada County & Sacramento Canal Co. v. Kidd, 37 Cal. 282, 310 (1869), ("The right to the water, or water right, as it is commonly called, is only acquired by an actual appropriation and use of the water"); De Necochea v. Curtis, 80 Cal. 397, 402, 20 Pac. 563, 22 Pac. 198 (1889). 110Basinger v. Taylor, 30 Idaho 289, 299, 164 Pac. 522 (1917). |