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Show 735 diligently to completion. It is further provided that failure to comply with the statutory requirements deprives the appropriator of the right to the use of water as against a subsequent claimant who complies therewith, and that by compliance, the right of use relates back to the date of posting notice, the first step in the procedure.125 This method of appropriation was first prescribed by statute in 1885.126 Prior to that enactment, no notice or record of appropriation was required; "A person acquired a right to the use of water by digging a ditch, tapping a stream, .and turning water into it, and applying the water so diverted to a beneficial use. This constituted a valid appropriation of water."127 In such cases, if the appropriator exercised reasonable diligence in com- pleting his appropriation, the priority of his right related back to the date of commencement of the work.128 The Montana Supreme Court has held that the legislature, by the law of 1885, did not abolish the preexisting method of appropriating water by diversion and use; it pro- vided an additional and alternative method of making an appropriation which controlled exclusively the doctrine of relation with respect to appropriations thereafter made.129 That is, only by compliance with the statute could the benefits of the doctrine of relation be claimed with respect to an appropriation made after the enactment.130 But, in the view of the supreme court, the legislature did not intend that one who failed to comply with the statute, but who nevertheless actually diverted water, could be deprived of it by another who complied with the statute at a time subsequent to the former's completed appropria- tion.131 It seems to be settled that with regard to unadjudicated waters, a valid appropriation of water can be made even where there is no compliance with the statute, where water actually is diverted and "" Mont. Rev. Codes 1947, Ann., §§ 89-810 to 89-812. "•Mont. Laws 1885, p. 130 (March 12, 1885). m Murray v. Tingley, 20 Mont. 260, 268, 50 Pac. 723 (1897). m Woilman v. Garringer, 1 Mont. 535, 544 (1872); Murray v. Tingley, 20 Mont. 260, 268, 50 Pac. 723 (1897); Wright v. Cruse, 37 Mont. 177, 181-183, 95 Pac. 370 (1908); Bailey v. Tintinger, 45 Mont. 154, 171, 122 Pac. 575 (1912); Maynard v. Watkins, 55 Mont. 54, 56, 173 Pac. 551 (1918). "• Murray v. Tingley, 20 Mont. 260, 268-269, 50 Pac. 723 (1897); Bailey v. Tintinger,45 Mont. 154,171-172,122 Pac. 575 (1912). ™ Murray v. Tingley, 20 Mont. 260, 269, 50 Pac. 723 (1897); Bailey v. Tintinger, 45 Mont. 154, 168-170, 122 Pac. 575 (1912); Maynard v. Watkins, 55 Mont. 54, 56, 173 Pac. 551 (1918); Allen v. Petrick, 69 Mont. 373, 384, 222 Pac. 451 (1924). Necessity of diligence in completing a statutory appro- priation: Anaconda National Bank v. Johnson, 75 Mont. 401, 408-410, 244 Pac. 14-1 (1926); Anderson v. Spear-Morgan Livestock Co., 107 Mont. 18, 29, 79 Pac. (2d) 667 (1938). 141 Murray v. Tingley, 20 Mont. 260, 269, 50 Pac. 723 (1897). &11611-51-------48 |