| OCR Text |
Show METHODS OF APPROPRIATING WATER OF WATERCOURSES 377 (4) Lack of diligence. In a considerable number of decisions in which no extraordinary difficulties were apparent, lack of diligence was measured by the excessive length of time taken to accomplish an act or series of acts in making an appropriation of water. Some holdings that under the circumstances of the particular case the length of time actually taken was immoderate and unreasonable, and therefore to be considered as imputing lack of diligence, follow: - Submission for 18 years or more to a temporary injunction without making any effort to have it removed.757 - Periods of 14 years between initiation of the project and completion of a part of the work.758 - Period of 20 years from initiation to application to beneficial use.759 - In an interstate case, the United States Supreme Court considered that a failure for a period of nearly 40 years to put waters to beneficial use precluded the claimants from now asserting their rights.760 - On the premise that an appropriator is allowed a reasonable time-and only such-within which to complete application of water to the contemplated beneficial use, the Oregon Supreme Court held that the installation of an elaborate system of irrigation after 67 years of flooding native vegetation was an attempted new appropriation and hence inferior to an intervening right.761 Gradual or Progressive Development General principles. -From early times, courts have recognized the principle that the right to the use of water for irrigation is not necessarily confined to Compare Antero & Lost Park Res. Co. v. Ohler, 65 Colo. 161, 162-163, 176 Pac. 286 (1918). From 1891 to June 1894 some actual construction work was carried on. Then for several years the only work was on maintenance of fences and buildings. From 1898 to 1907 no construction work was done. The supreme court supported the trial court's finding that diligence had not been exercised from 1894 to 1907 and that there was no right to a priority antedating 1907. Justice Garrigues dissented on the grounds that the delays were excusable by reason of the magnitude and difficulties of the work, death of one of the active parties, and the financial stringency attending the panic of 1893. 151 Sierra Land & Water Co. v. Cain In. Co., 219 Cal. 82, 83-84, 25 Pac. (2d) 223 (1933). 1S8Hindman v. Rizor, 21 Oreg. 112, 120, 27 Pac. 13 (1891); Stickney v. Hanrahan, 7 Idaho 424, 431, 63 Pac. 189 (1900); Vineyard Land & Stock Co. v. Twin Falls Salmon River Land & Water Co., 245 Fed. 9, 21-22 (9th Cir. 1917). 1S9Oscarson v. Norton, 39 Fed. (2d) 610, 613 (9th Cir. 1930). An unexplained lapse of 25 years in reconstructing a destroyed dam would be considered in determining as a question of fact whether due diligence had been exercised under all the circumstances of the case: Gik Water Co. v. Green, 29 Ariz. 304, 306, 241 Pac. 307 (1925). See also Carbon Canal Co. v. Sampete Water Users Assn., 19 Utah (2d) 6, 425 Pac. (2d) 405, 409 (1967). 760 Washington v. Oregon, 297 U. S. 517, 528-529 (1936). 761 Oliver v. Skinner & Lodge, 190 Oreg. 423,437-438, 226 Pac. (2d) 507 (1951). |
