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Show 494 THE APPROPRIATIVE RIGHT Beneficial use defined.-According to the Texas Legislature:280 For the purpose of this chapter, beneficial use shall be held to mean the use of such a quantity of water, when reasonable intelligence and reasonable diligence are exercised in its application for a lawful purpose, as is economically necessary for that purpose. And in the South Dakota water rights statute, the section on "Definitions" of terms used in the statute, "unless the context otherwise plainly requires," includes:281 "Beneficial Use" [is] any use of water that is reasonable and useful and beneficial to the appropriator, and at the same time is consistent with the interests of the public in the best utilization of water supplies. The rule and its reasons. - In 1935, after mentioning the ditch-capacity rule, long since repudiated in the State, the California Supreme Court observed that:282 As the pressure of population has led to the attempt to bring under cultivation more and more lands, and as the demands for water to irrigate these lands have become more and more pressing, the decisions have become increasingly emphatic in limiting the appropriator to the quantity reason- ably necessary for beneficial uses. * * * If the appropriator uses more than the amount so required, he gains no right thereto. An excessive diversion of water for any purpose cannot be regarded as a diversion for a beneficial use. In so far as the diversion exceeds the amount reasonably necessary for beneficial purposes, it is contrary to the policy of the law and is a taking without right and confers no title, no matter for how long continued.* * * Substantially the same observations, in one form or another, were made by many courts.283 More picturesquely phrased was the earlier observation of Federal District Judge Thomas P. Hawley, who 45 years before, in 1852, crossed the plains to the Carson River area of Nevada: "In the appropriation of water, there cannot be any 'dog in the manger' business by either party, to 280 Tex. Rev. Civ. Stat. Ann. art. 7476 (1954). 281S. Dak. Comp. Laws Ann. § 46-1-6(6) (1967). 282 Tulare In. Dist. v. Lindsay'-Strathmore In. Dist., 3 Cal. (2d) 489, 546-547, 45 Pac. (2d) 972 (1935). See Thome v. McKinley Bros., 5 Cal. (2d) 704, 710, 56 Pac. (2d) 204 (1936). 283 Some examples: Allen v. Petrick, 69 Mont. 373, 377, 222 Pac. 451 (1924); Steptoe Live Stock Co. v. Gulley, 53 Nev. 163, 172, 295 Pac. 772 (1931); State ex rel. Community Ditches v. Tularosa Community Ditch, 19 N. Mex. 352, 371, 143 Pac. 207 (1914); Whited v. Cavin, 55 Oreg. 98, 107, 105 Pac. 396 (1909); Crawford v. LehiIn. Co., 10 Utah (2d) 165, 168-169, 350 Pac. (2d) 147 (1960); Quinn v. John Whitaker Ranch Co., 54 Wyo. 367, 378, 92 Pac. (2d) 568 (1939). |