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Show ELEMENTS OF THE APPROPRIATIVE RIGHT 495 interfere with the rights of others, when no beneficial use of the water is or can be made by the party causing such interference."284 Constitutional and statutory declarations.- Provisions in the constitutions of 10 Western States relate the right to the use of water to beneficial use. These are Arizona, California, Colorado, Idaho, Montana, Nebraska, New Mexico, Texas, Utah, and Wyoming. The water rights statutes of 10 States contain the historical pronouncement that beneficial use shall be the basis, the meas- ure, and the limit of the right to the use of water.285 Statutes of near- ly all Western States contain either positive declarations of the essen- tial relationship between appropriative rights and beneficial use of water, or incidental references to beneficial use in the procedures for appropriating water, or both. Some incidents of the rule of beneficial use. -(1) The intention of one who seeks to appropriate water in any of the permit States is disclosed in his application for a permit. In seeking the State's permission to appropriate a specific quantity of water for the purpose of applying it to a stated beneficial use, the applicant expressly declares his intent to do these things. But prior to the era of administrative control over appropriation of water, the courts had come to consider appropriator's intent as a necessary element in their determination of both the validity of his appropriation and the extent of it. This is briefly noted above under "Property Characteristics-Right of Beneficial Use-The Concurring Judicial Rule." Thus, the courts looked into the appropriator's intention, his object, and his purpose before going on to consider his acts, reasonableness, and diligence in consummating the intent.286 And essential to the initiation of the appropria- tion were the bona fides of the claimant's intent to appropriate the water and apply it to a beneficial use.287 "The law will not encourage anyone to play the part of the dog in the manger, and therefore the intention must be bona fide and not a mere afterthought."288 The bona fide intent may be to apply the water not only to an existing beneficial use, but to prospective or contemplated beneficial use. As noted earlier in chapter 7 under "Methods of Appropriating Water of Watercourses- 284 Union Mill & Min. Co. v. Dangberg, 81 Fed. 73, 119 (C. C. D. Nev. 1897). The phrase was used in Bailey v. Tintinger, 45 Mont. 154, 178, 122 Pac. 575 (1912); Vineyard Land & Stock Co. v. Twin Falls Salmon River Land & Water Co., 245 Fed. 9, 21 (9th Cir. \9\l);Harkey v. Smith, 31 N. Mex. 521, 531, 247 Pac. 550 (1926). 285 Citations of the applicable constitutional and statutory provisions are given above under "Property Characteristics-Right of Beneficial Use." 286 Hewitt v. Story, 64 Fed. 510, 514 (9th Cir. 1894); Power v. Switzer, 21 Mont. 523, 530, 55 Pac. 32 (1898); Crawford v. Lehilrr. Co., 10 Utah (2d) 165, 168-169, 350 Pac. (2d) 147 (1960);/n re Alpowa Creek, 129 Wash. 9,13-14, 224 Pac. 29 (1924). 287Millheiser v. Long, 10 N. Mex. 99, 106, 61 Pac. Ill (1900); Nevada Ditch Co. v. Bennett, 30 Oreg. 59, 97, 45 Pac. 472 (1896). ™ Bailey v. Tintinger, 45 Mont. 154, 178, 122 Pac. 575 (1912). |