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Show ELEMENTS OF THE APPROPRIATIVE RIGHT 497 is present in excess of all needs, would not be a reasonable beneficial use in an area of great scarcity and great need. What is a beneficial use at one time may, because of changed conditions, become a waste of water at a later time. (5) Because a sine qua non of a valid appropriation of water is that it should be applied to some beneficial use, a quantity of water too small to be used beneficially is not subject to appropriation.298 Furthermore, the mere watering of land with intent to promote plant growth cannot be classed as beneficial if the conditions are such as to produce only meager, insubstantial results.299 However, beneficial use of water upon lands, and the possibility of the landowner's making a profit from the crops raised by means of irrigation upon his lands, are not one and the same thing. In other words, in the instant case, the question of profitableness of rice culture by a landowner had no bearing upon his right to receive and use water for that purpose.300 (6) Irrigation is a beneficial use of water in an arid land. "It is true that the diversion of the water only ripens into a valid appropriation when it is utilized by the appropriator for a beneficial use. But it need not be alleged in the complaint that the irrigation of lands is a beneficial use. If irrigation in a dry and arid climate like Nevada is not a beneficial use of the water, it would be difficult to determine what is."301 Other Terms Associated with Beneficial Use Exclusion of unnecessary waste. -Unnecessary or unreasonable waste of water is incompatible with its beneficial use. Water in arid areas of the West "is too scarce, needful, and precious" to admit of waste.302 Hence, "An excessive diversion of water for any purpose cannot be regarded as a diversion to a beneficial use." In an interstate case, the United States Supreme Court warned that "There must be no waste in arid lands of the 'treasure' of a river. * * * The essence of the doctrine of prior appropriation is beneficial use, not a stale or barren claim."303 As a result, an appropriation of water does not include the right to waste it when waste can be avoided.304 It was said by the United States Supreme Court 29*Fourzan v. Curtis, 43 Ariz. 140, 146, 29 Pac. (2d) 722 (1934). 299 Vineyard Land & Stock Co. v. Twin Falls Salmon River Land & Water Co., 245 Fed. 9, 21-22 (9th Cir. 1917). 300Nelson v. Anderson-Cottonwood In. Dist., 51 Cal. App. 92, 96, 196 Pac. 292 (1921). 301Miller & Lux v. Rickey, 127 Fed. 573, 585, (C. C. D. Nev. 1904). This statement was made in the opinion of the court in a suit concerning rights to use of waters of Walker River, which rises in California and flows into Nevada. 302 Union Mill & Min. Co. v. Dangberg, 81 Fed. 73, 97 (C. C. D. Nev. 1897); Combs v. Agricultural Ditch Co., 17 Colo. 146, 153-154, 28 Pac. 966 (1892). 303 Washington v. Oregon, 297 U. S. 517, 527-528 (1936). 304 Twin Falls Land & Water Co. v. Twin Falls Canal Co., 7 Fed. Supp. 238, 251-252 (D. Idaho 1933). 450-486 O - 72 - 34 |