OCR Text |
Show IDAHO 265 denied. The Idaho court has construed this provision to mean that an appropriation can be accomplished by no more than diverting the water and placing it to beneficial use.41 The appropriation is complete upon the application of the water to a beneficial use and the priority of the right dates from the time the water is actually placed to a beneficial use.42 b. STATUTORY METHOD Under the statutory method, the appropriator must apply to the director for approval of an application to appropriate.43 Upon ob- taining approval of his filing and strictly complying with the statu- tory procedure noted below, the applicant's priority relates back to the date his application was filed.44 A right secured under the statutory procedure is equal to a right acquired under the constitutional procedure, but there is a differ- ence with respect to the priority date of the water right. The ap- propriator following the statutory method is entitled to the doctrine of relating back, whereby his priority date, as noted above, is the date filing; while under the constitutional method the appropriator must complete his project in order to secure a priority, and the pri- ority date is the date of completion. The statutory procedure was first set up in 1881 with provisions for posting and recording no- tices. The present procedure of filing with the director replaced this earlier procedure in 1903.45 Various features of this legislation have been upheld as being constitutional, including a decision that the authority delegated to the director did not constitute an unlawful vesting of judicial power in a state administrative official.46 (1) Procedural steps.-In order to initiate an appropriation un- der the statutory method, the water user is required to file an appli- cation to appropriate with the director. If the appropriation is for irrigation, the applicant is limited to no more than one cubic foot per second for each 50 acres of land, or no more than 5 acre-feet per acre per year, unless it can be shown to the satisfaction of the director that a greater amount is necessary. The director gives notice of the application by publication, and if no protests are filed he may ap- prove the application. However, if the filing is protested, the director must set the application for hearing.47 Applications in excess of 10,000 acre-feet are referred to the water resources board for its approval or disapproval, based on certain statutory criteria.48 Idaho has specific legislation authorizing the appropriation of water for use in some of the States which border Idaho, under certain specified conditions.49 a Sand Point Water & Light Go. v. Panhandle Developments Co., 11 Idaho 405, 83 Pac. 347 (1905). «P«fce v. Barnside, 8 Idaho 487, 69 Pac. 477 (1902) ; and Crane Falls Power & Irr. Co. v. Snake Irr. Co., 24 Idaho 63, 133 Pac. 655 (1913). 48 Idaho code sec. 42-202. "Big Wood Canal Co. v. Chapman, 45 Idaho 380. 263 Pac. 45 (1927). ^Hutchins, "The Idaho Law of Water Bights," 5 Idaho Law Review 21 (1968). KBig Wood Canal Co. v. Chapman, 45 Idaho 380, 263 Pac. 45 (1927); and Boise City Irr. & Land Co. v. Stewart, 10 Idaho 38, 77 Pac. 25 (1904). «Idaho code, sees. 42-202, 42-203. «Idaho code, sec. 42-1737. 48 Idaho code, sees. 42-401 to 42-409. |