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Show 496 THE APPROPRIATIVE RIGHT Completion of Appropriation", this must be consummated with reasonable diligence pursuant to the initial intent.289 The future, therefore, must have been within the appropriator's original intent in undertaking such appropriations.290 Indeed, when the beneficial use of water covered by an appropriation is not immediate, but is prospective or contemplated, the intention of the party becomes of prime importance. (2) Streamflow not appropriated by others. A number of courts have held that one can make an appropriation of the entire flow of a stream if he can and does apply the entire quantity to beneficial use.291 The California Supreme Court held that as a result of the constitutional amendment of 1928,292 excess waters over the requirements of riparian owners and prior appropriators constitute public waters of the State "to be used, regulated and controlled by the state on or under its direction."293 Hence, if an intending appropriator can make reasonable beneficial use of all such excess waters in a stream, he can lawfully appropriate the entire quantity.294 (3) The privilege granted by the State to divert water only for uses truly beneficial rules out speculation.295 (4) If, after an appropriation is made, conditions change and the necessity for the original beneficial use diminishes, then to the extent of the lessened necessity the appropriator no longer has use for that additional quantity of water and the change inures to the benefit of subsequent appropriators who have need for it.296 Cognizance of this facet of the rule of beneficial use of water was taken by the California Supreme Court in stating that:297 What is a beneficial use, of course, depends upon the facts and circum- stances of each case. What may be a reasonable beneficial use, where water 289Hutchinson v. Stricklin, 146 Oreg. 285, 297, 28 Pac. (2d) 225 (1933). In 1900, the Montana Supreme Court declared that as every appropriation must be for a beneficial or useful purpose as commanded by the statute, "it becomes the duty of the courts to try the question of claimant's intent by his acts and the circumstances surrounding his possession of the water, its actual or contemplated use and the purposes thereof." Toohey v. Campbell, 24 Mont. 13, 17-18, 60 Pac. 396 (1900). 290Haight v. Costanich, 184 Cal. 426, 431-432, 194 Pac. 26 (1920). 291 Brown v.Mullin, 65 Cal. 89, 90, 3 Pac. 99 (1884); Larsen v.Apollonio, 5 Cal. (2d) 440, 444, 55 Pac. (2d) 196 (1936); Lockwood v. Freeman, 15 Idaho 395, 398, 98 Pac. 295 (1908); Mettler v. Ames Realty Co., 61 Mont. 152, 159-160, 201 Pac. 702 (1921); Marks v. Hilger, 262 Fed. 302, 304 (9th Cir. 1920). See also Keller v. Magic Water Co., 92 Idaho 276, 441 Pac. (2d) 725, 733 (1968); Village of Peck v. Denison, 92 Idaho 747, 450 Pac. (2d) 310, 313-314 (1969). 292Cal. Const., art. XIV, § 3. 293Meridian v. San Francisco, 13 Cal. (2d) 424, 445, 459, 90 Pac. (2d) 537 (1939). 29AAlbaugh v. ML Shasta Power Corp., 9 Cal. (2d) 751, 762, 73 Pac. (2d) 217 (1937). 295Combs v. Agricultural Ditch Co., 17 Colo. 146,152, 28 Pac. 966 (1892). 296Conrow v. Huffine, 48 Mont. 437, 444-445, 138 Pac. 1094 (1914); Huffine v. Miller, 74 Mont. 50, 52, 237 Pac. 1103 (1925). 297 Tulare In. Dist. v. Lindsay-Strathmore In. Dist., 3 Cal. (2d) 489, 567, 45 Pac. (2d) 972 (1935). |