| OCR Text |
Show 594 EXERCISE OF THE APPROPRIATIVE RIGHT Natural overflow.-With, respect to irrigation-a beneficial use of water which is usually served away from the stream channel rather than within it-the Nevada Supreme Court in Walsh v. Wallace held that to constitute a valid appropriation of water there must be an actual diversion of the same. The cutting of wild grass produced by the overflow of a stream, said the court, or "by the water of Reese river coming down and spreading over the land," was not an appropriation of water within the meaning of that term.16 According to a description of early Nevada conditions in the opinion in a Federal case decided in 1897, based not only on the record in the case but also on the judge's own experiences as one who came to Carson Valley in 1852, it was then common practice to take advantage of the irrigation water chiefly through its overflow.17 However, standards apparently had risen in the half-century that passed before Walsh v. Wallace was decided in 1902; and the 1897 Federal opinion itself contains an excellent summary of the principles by which the extent of one's appropriation is determined, as developed by the courts prior to the era of administrative practice and procedure.18 In 1910, a Federal court stated that the watering of meadowland by use of natural overflow would found no right of appropriation, citing Walsh v. Wallace.19 In an early case, the Colorado Supreme Court took a broad view of the question of appliances in getting irrigation water from a stream to the land to be moistened. In the court's opinion "a dam or contrivance of any kind," with or without ditches, would be legally sufficient if physically effective. Or even if production could be attained "by the natural overflow of water thereon, without the aid of any applicances whatever," such natural moistening would be a sufficient appropriation of the reasonably necessary quantity of water.20 A few years earlier than the supreme court's rendering of this decision, the Colorado Legislature enacted a statute, still extant, which provides that persons who shall have enjoyed the use of water from a natural stream for irrigation of meadowland by the natural overflow or operation of the stream may, in case of diminution of flow, construct ditches for that purpose with priorities as of the statute, unless in so doing they appreciably decreased the quantity or deteriorated the quality of the waters to the use of which defendants had a priority. See also Hunter v. United States, 388 Fed. (2d) 148, 153 (9th Cir. 1967), arising from California, regarding appropriation for livestock use as well as by placing water wheels in a stream to operate mills, citing Ortman v. Dixon, 13 Cal. 33 (1859; Tartar v. Spring Creek Water & Mining Co., 5 Cal. 395 (1855). 16 Walsh v. Wallace, 26 Nev. 299, 327-328, 67 Pac. 914 (1902). 1 nUnion Mill & Min. Co. v. Dangberg, 81 Fed. 73, 100-103 (C.C.D. Nev. 1897), opinion by Judge Thomas P. Hawley. See, in chapter 8, "Elements of the Appropriative Right-Purpose of Use of Water-Stockwatering." 18Id. at 94-95. ^Anderson Land & Stock Co. v. McConnell, 188 Fed. 818, 822 (C.C.D. Nev. 1910). 20Thomas v. Guiraud, 6 Colo. 530, 533 (1883). Successful application of water to beneficial use is the true test, the method of getting the water there being immaterial. |
