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Show 396 APPROPRIATION OF WATER private use in Wyoming as against another State or appropriators therein, (f) Procedure is provided for transferring, from an adjoining State to a location within Wyoming, the point of diversion of an appropriation of water of an interstate stream entering Wyoming that was acquired from the sister State.852 Priority of Appropriation Importance and Value of Fixed Priority Essential element of the doctrine.-As the term implies, priority is an essential ingredient of the law of prior appropriation. "One of the essential elements of a valid appropriation is that of priority over others."853 This principle was established in California by the customs of the miners and by the supreme court in its earliest decisions over rights to the use of water.854 As the appropriation doctrine became established in the western jurisdictions by customs, statutes, and court decisions, it included the essential principle of "First in time, first in right"-that priority in time of making an appropriation confers superiority of right over those who follow.855 This principle still prevails in the water rights jurisprudence of the West except as noted below under "Restrictions and Preferences in Appropriation of Water." The date of priority.-The priority of a particular appropriation is represented by a date. With respect to such water right, all appropriations of water of the same source of supply having earlier dates of priority are senior in right, and all having later dates of priority are junior in right. 8S2Wyo. Stat. Ann. §§ 41-34,-150 to-153, and-11 to-25 (1957). 8S3Joerger v. Pacific Gas & Electric Co., 207 Cal. 8, 26, 276 Pac. 1017 (1929). The appropriator first in time is prior in right over others on the same stream: Arizona v. California, 298 U. S. 558, 565-566 (1936). This is the fundamental principle of appropriation of water: Caviness v. La Grande In. Co., 60 Oreg. 410, 424, 119 Pac. 731 (1911). It is the cardinal rule of the doctrine: Lindsey \.McClure, 136 Fed. (2d) 65,69(10thCir. 1943). BS4Eddy v. Simpson, 3 Cal. 249, 252 (1853); Stiles v. Laird, 5 Cal. 120, 122-123 (1855). Conflicting rights to the working of mines and to the diversion of streams from their natural channels were held to stand on an equal footing, and "when they conflict, they must be decided by the fact of priority upon the maxim of equity, qui prior est in tempore potior est in jure." Irwin v. Phillips, 5 Cal. 140, 146-147 (1855). Jennison v. Kirk, 98 U. S. 453, 457-458, 461 (1879). 855See Bower v. Moorman, 27 Idaho 162, 180-181, 147 Pac. 496 (1915);Mettler v.Ames Realty Co., 61 Mont. 152, 159-160, 169, 201 Pac. 702 (1921);Proctor v. Jennings, 6 Nev. 83, 87 (1870);Biggs v. Miller, 147 S. W. 632, 636 (Tex. Civ. App. 1912);LehiIn. Co. v. Moyle, 4 Utah 327, 340, 9 Pac. 867 (1886); Willey v. Decker, 11 Wyo. 496, 510, 73 Pac. 210 (1903); Vineyard Land & Stock Co. v. Twin Falls Oakley Land & Water Co., 245 Fed. 30, 34 (9th Cir. 1917); Basey v. Gallagher, 87 U. S. 670, 682 (1875). Compare Sturr v. Beck, 6 Dak. 71, 50 N. W. 486 (1888), affirmed, 133 U. S, 541, 552 (1890). |
