OCR Text |
Show 728 of natural springs and lakes, are the property of the State, and that the right to the use of the waters of "rivers, streams, lakes, springs, and of subterranean waters" may be acquired by appropriation.89 The statute also provides that all rights to the use of water shall be "lost and abandoned" by failure for a period of five years to make the beneficial use for which the water was appropriated; such loss of right being stated by the supreme court to be in fact a statutory forfeiture as distinguished from a true abandonment.90 As a result of the constitutional prohibition against the denial of appropriations of water, there are two methods of appropriating water in Idaho, of equal validity. One method is the procedure provided by statute, under which the right originally was initiated by posting and recording a notice of appropriation, but now is initiated by filing with the State Department of Reclamation an application for a permit to make the appropriation. The Department issues a certificate to the water user upon completion of construction of the works; and upon application of the water to beneficial use and a showing that the law has been fully complied with, the Department issues to the water user a license confirming such use.91 The extant water appropriation statute declares that all rights to divert and use the waters of the State for beneficial purposes shall be acquired and confirmed under the provisions of the statute.02 Notwithstanding this declaration, it is well settled in Idaho that the statutory procedure in effect at the time of making a particular appropriation (initiation by posting and recording notice, or by applying to the State for a permit, as the case may be) has not been and is not now the exclusive method of appropriating water, and that equally valid rights may be acquired by diverting water and applying it to beneficial use without pursuing the statutory method.93 The method of appropriating water by mere diversion and use is often referred to as the "constitutional" method, as distinguished from the 89 Idaho Code, §§ 42-101 and 42-103. 90 Idaho Code, § 42-222. In Carrington v. Crandall, 65 Idaho 525, 532, 147 Pac. (2d) 1009 (1944), the court pointed out that while the statute desig- nates the loss as "abandonment," it is in fact a statutory forfeiture; that there is another kind of abandonment that is actual, not dependent upon length of time, the essential element of which is intent to relinquish the right. 91 Idaho Code, §§ 42-202 to 42-311. The license is only prima facie evi- dence of the water right: Basinger v. Taylor, 36 Idaho 591, 597-598, 211 Pac. 1085 (1922). 92 Idaho Code, sec. 42-201. °*Sand Point Water & Light Co. v. Panhandle Development Co., 11 Idaho 405, 413, 83 Pac. 347 (1905); Nielson v. Parker, 19 Idaho 727, 730-731, 733, 115 Pac. 488 (1911); Youngs v. Regan, 20 Idaho 275, 279, 118 Pac. 499 (1911); Furey v. Taylor, 22 Idaho 605, 611, 612, 127 Pac. 676 (1912); Washington State Sugar Co. v. Goodrich, 27 Idaho 26, 38, 147 Pac. 1073 (1915); Bachman y. Reynolds In. Dist., 56 Idaho 507, 514, 55 Pac. (2d) 1314 (1936). |