OCR Text |
Show ELEMENTS OF THE APPROPRIATIVE RIGHT 489 emerged the concept that no unqualified right of appropriation was accorded. This was further implemented by express grants to administrators of broad powers (1) to deny permits in the interest of the public welfare, and (2) to choose between conflicting applications to appropriate water pursuant (a) to a legislatively declared list of purposes of use and (b) to further considerations of public interest. In view of these developments of expressed legislative intent, and of sympathetic consideration by the courts so long as existing property rights are adequately protected, the basic principle of time priority in applying for a permit to appropriate water, while it still exists, is no longer-and it has not been for many years-the sole criterion in approval of an application. Development of many large-scale storage projects throughout the West inevitably left less and less streamflow available for individual appropriation. The trend is still in this direction and will continue into the foreseeable future. Administrative attention is necessarily called more and more to overall problems of conservation and best use of water for multiple purposes in which public welfare has prime consideration, and-except with respect to ground water-less and less to formal applications by individuals for appropriation of small quantities of irrigation water for their small tracts of land. The foregoing comments apply to acquisition of appropriative rights. Exercise of an acquired right is a different matter. Once priorities are established, whether in favor of specified individuals or of large projects, priority of the right governs the schedules according to which diversions and reservoir fillings are regulated by State administrative agencies. Some Facets of the Subject of Priority of Right Chapter 7 ends with a considerable treatment of related topics concerning priority of appropriation and restrictions and preferences in appropriation. They include the importance and value of a fixed priority, successive appropriations on one stream by the first user and by other parties, and relation of the priority to diversion works and to the stream as a whole. They also pertain to constitutional and statutory restrictions on the right to make appropriations, consideration of other obligations pertaining to the stream, and granting of qualified permit rights. And they relate to various orders of preferences in acquiring appropriative rights and in use of appropriated water. Further discussion of these matters here is unnecessary. Specific Quantity of Water The General Rule The appropriative right refers in most instances to a definite quantity of water. From the early mining days, this has been the case.262 Indeed, this has 262 "* * * the right to appropriate a specific amount, in preference to others, must be determined by a suit brought for that purpose,* * *." Owens v. Snider, 52 Okla. 772, 781, 153 Pac. 833(1915). |