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Show 508 THE APPROPRIATIVE RIGHT use the quantity of water appropriated and diverted." [Emphasis supplied.]357 By contrast, there is the forthright statement a half-century later that: "Many factors enter into a determination of the duty of water, which is based upon two primary considerations: beneficial and economical use. The determination of this question is a determination of a fact."358 In 1924, the Montana Supreme Court observed that: "A fundamental er- ror into which the early day courts fell was the result of their failure to appreciate what has been termed the duty of water; that is, the ex- tent to which and the manner in which the water should be used by the appropriator."359 The courts came to agree in principle that in fixing the extent of an appropriative right, "The quantity of water acquired by appropriation must be determined by the amount of land irrigated and the quantity of water needed therefor."360 This principle recognized not only, as a limiting factor, the need for water for a particular area, but also the necessity for determining the specific quantity of water needed. Specific quantities are mentioned in various State supreme court opinions, none of which evince any illusion as to the difficulties of arriving at figures that would do justice to all parties according to their respective rights. Federal District Judge Bourquin was frankly skeptical of the practicability of such an undertaking. "But how any court can predetermine the duty of water, passeth understanding. So variable are the essential factors of soil, cultivation, skill, crop, weather, time, that omnipotence, but not human wisdom, might solve the problem."361 Nevertheless, many courts essayed solution of the problem. In some areas, for example, the judicial general rule became 1 inch per acre unless the evidence disclosed that a greater or lesser quantity was required-a fact for the court or jury, and never to be considered a question of law for the courts.362 In one region in which the general rule for certain situations was xh inch per acre, an allowance of 2 inches was made where the smaller stream 357Kleinschmidt v. Greiser, 14 Mont. 484, 496, 37 Pac. 5 (1894). In determining the amount so appropriated, it is "proper" for the courts to take into consideration the number of acres of land susceptible of irrigation and the amount of water necessary to irrigate the same: Kirk v. Bartholomew, 3 Idaho 367, 372, 29 Pac. 40 (1892). 358 Uhrig v. Coffin, 72 Idaho 271, 274, 240 Pac. (2d) 480 (1952). 359Allen v. Petrick, 69 Mont. 373, 379-380, 222 Pac. 451 (1924). Continuing, the court said that: "In determining the duty of water the court should ascertain the quantity which is essential to irrigate economically but successfully the tract of land to be irrigated. Emphasis should be placed upon economy of use. But economy should not be insisted upon to such an extent as to imperil success." 360Porter v.Pettengill, 57 Oreg. 247, 250, 110 Pac. 393 (1910). 361 United States v. American Ditch Assn., 2 Fed. Supp. 867, 869 (D. Idaho 1933). 362Stearns v. Benedick, 126 Mont. 272, 276-277, 247 Pac. (2d) 656 (1952); Conrow v. Huffine, 48 Mont. 437, 445446, 138 Pac. 1094 (1914). |