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Show 510 THE APPROPRIATIVE RIGHT Statutory provisions.- (1) Beneficial use as limit of right. Beneficial use of water as an essential measure of the appropriative right runs throughout the water rights legislation of the West, either expressly or by necessary implication, or both. As brought out earlier under "Beneficial Use of Water," water rights statutes of 10 States repeat the historic declaration that beneficial use shall be the basis, the measure, and the limit of the right to the use of water.368 Additional provision for implementing the declaration is made in some of these acts; and various specific references to beneficial use or reasonable requirements of appropriators appear in the statutes of the remaining eight mainland States.369 (2) Quantitative limitations. In the water rights statutes of several States are limitations upon the quantity of water that may be used per acre of land devoted to agriculture under irrigation. (a) California. As used in the division of the Water Code pertaining to water rights, the term "useful or beneficial purposes" is not to be construed to mean the use in any 1 year of more than 2Vi acre-feet of water per acre in the irrigation of land not devoted to cultivated crops.370 The rules and regulations of the State Water Resources Control Board state the amounts of water considered reasonably necessary for certain uses in typical parts of the State.371 (b) Idaho. No permit shall authorize the diversion for irrigation purposes of more than 1 second-foot for each 50 acres of land, or more than 5 acre-feet successful and economical irrigation, whereas qualified farmers with wide and long experience in local irrigation testified that two to three inches were necessary. The engineers had no personal experience in the local area and, according to the court, based their testimony "upon a mere casual examination thereof." The supreme court fortified its decision in the premises by the skeptical observation that: "While, in determining the weight of the evidence in this case, we should consider the interest of the parties, we should also consider the fact that the engineers were employed by the appellants herein, and in their testimony would likely favor the parties by whom they were employed." Worden v. Alexander, 108 Mont. 208, 214-215, 90 Pac. (2d) 160 (1939). Compare Joerger v. Pacific Gas & Electric Co., 207 Cal. 8, 21-22, 35-36, 276 Pac. 1017(1929). 368Ariz. Rev. Stat. Ann. § 45-101(B) (1956); Nev. Rev. Stat. §533.035 (Supp. 1969); N. Mex. Const., art. XVI, § 3; N. Mex. Stat. Ann. § 75-1-2 (1968); N. Dak. Cent. Code Ann. § 61-01-02 (Supp. 1969); Okla. Stat. Ann. tit. 82, § 1-A (1970); Oreg. Rev. Stat. § 540.610 (Supp. 1969); S. Dak. Comp. Laws Ann. § 46-1-8 (1967); Tex. Rev. Civ. Stat. Ann. art. 7542 (1954); Utah Code Ann. § 73-1-3 (1968); Wyo. Stat. Ann. § 41-2 (1957). 369 Alaska Stat. § § 46.15.030 and 46.15.260 (Supp. 1966); Cal. Water Code § 1240 (West 1956); Colo. Rev. Stat. Ann. § 148-21-3(7) (Supp. 1969); Idaho Code Ann. § 42-220 (1948); Kans. Stat. Ann. § 82a-707(d) (1969); Mont. Rev. Codes Ann. § 89-802 (1964); Nebr. Rev. Stat. § 46-231 (1968); Wash. Rev. Code § 90.03.010 (Supp. 1961). 370 Cal. Water Code § 1004 (West 1956). 371 Cal. Admin. Code, tit. 23, § 657 (1969). |