OCR Text |
Show METHODS OF APPROPRIATING WATER OF WATERCOURSES 373 for a beneficial purpose, no valid appropriation has been effected. This was so before the statute, and it is still so under the statute.* * * Application of the water to a beneficial use is necessary to the validity of an appropriation made under any of the other western administration statutes, as well as that of Utah. Statutes of these States, other than those of Nebraska and Texas, require further action (a) in the form of an inspection by the administrative agency of the completed work and determination that the permittee has completed appropriation of the water, followed (b) by issuance to him of a certificate of appropriation or equivalent license declaring that he has appropriated a specific quantity of water not exceeding that stated in the permit. As stated above in discussing the nature and effect of a certificate or license, this final document is evidence of the completed appropriative right. It is acknowledgment by the State that the right has been perfected in accordance with law.731 And it is binding on the State in the absence of subsequent failure of the holder to keep the right in good standing. The document confirms only the right that has been perfected. Regardless of the maximum quantity of water authorized by the permit to be appropriated, the certificate or license confirms the right to only the quantity which the permittee has actually put to beneficial use. In Nebraska and Texas, the State administrative agencies by reports and investigations keep in touch with the status of work done under permits and may cancel the rights thereunder for failure to proceed diligently. The administrators of these States do not issue certificates or licenses confirming completion. Diligence Basic requirement of diligence.-It is a general principle, that the validity of an appropriation of water as against intervening rights depends upon its being completed within a reasonable time with the exercise of due diligence. This principle has been applicable throughout the entire history of the appropri- ation doctrine in the West. In a decision rendered in 1869, the California Supreme Court referred to its previous holdings concerning the necessity of diligence and good faith in relation to the doctrine of relation (discussed below) and declared the principles to be founded in reason. Their meaning and intent is that no man shall follow "dog in the manger" tactics, by claiming water because of certain preliminary acts and preventing others from enjoying what he lets alone, thereby preventing development of natural resources by others.732 In early 731 The Oregon Supreme Court has said that by the legislation of that State "the legislative assembly intended the water right certificate, not the permit, even when followed by a beneficial use, to mark the point at which a water right becomes vested." Green v. Wheeler, 254 Ore. 424,458 Pac. (2d) 938, 940-941 (1969), certiorari denied, 397 U. S. 990 (1969). ^Nevada County & Sacramento Canal Co. v. Kidd, 37 Cal. 282, 314 (1869). |