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Show 442 THE APPROPRIATIVE RIGHT As discussed earlier in chapter 7 under "Methods of Appropriating Water of Watercourses-Completion of Appropriation," the so-called "possessory basis" of a right of appropriation, which arose under practices of appropriating water on the public domain and was reflected in preadministrative water statutes as well as some court decisions, contemplated "completion" of the appropriation as conducting the water to the place of intended use. A right thus "completed," however, was subject to loss by abandonment if the water was not applied to beneficial use with reasonable diligence within a reasonable time. Under the current statutes providing administrative control over appropria- tion of water, as above noted, proof of application of the water to the intended beneficial use is the final step taken by the appropriator in acquiring an appropriative right. Application of the water to such use is absolutely essential to acquisition of the right. Measure of the right of beneficial use.-"The courts recognize that beneficial use is the basis, the measure, and the limit of the right to use of water, Section 2, Article 16, Constitution of New Mexico,* * *."M (See "State Constitutions and Statutes," above.) Thus, as against a subsequent appropriator, the appropriative water right extends to, and only to, the quantity of water actually diverted and applied to a beneficial use.25 Under the administrative statutes, water may not be appropriated in excess of the reasonable quantity that may be used for the beneficial purpose designated in the application for a permit.26 The allowable quantity of water is first measured by the original appropriation and, if that proves to be more than can be beneficially used, then by the factual measure of beneficial use.27 This facet of the right of beneficial use is developed further under "Elements of the Appropriative Right-Measure of the Appropriative Right," below. Right of Property28 Briefly, as stated immediately above, the appropriative right is a right of beneficial use, a usufruct only, and hence it does not include an ownership of the corpus of water while still in the natural source of supply. A necessary result is that (a) ownership of a private appropriative right and (b) ownership of the public water to which the right relates are entirely different things. "Holloway v. Evans, 55 N. Mex. 601, 607, 238 Pac. (2d) 457 (1951). "Kernan v. Andrus, 6 Alaska 54, 59-60 (1918); Ortel v. Stone, 119 Wash. 500, 503, 205 Pac. 1055 (1922). 26Crawford v.Lehilrr. Co., 10 Utah (2d) 165, 168-169, 350 Pac. (2d) 147 (1960). "Silver King Consolidated Min. Co. v. Sutton, 85 Utah 297, 331, 39 Pac. (2d) 682 (1934). 28 See chapter 5 which comprises discussions of the property nature of (1) water (a) flow- ing in a natural stream and (b) reduced to physical possession by means of artificial structures, and (2) water rights. |