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Show 736 applied to beneficial use; that "compliance is important only with regard to the doctrine of 'relation back' * * *, on due compliance."132 With respect to adjudicated waters, the appropriator must employ an engineer to make a survey of the diversion works, and must file a petition with the county court containing a declaration that the water rights sought to be acquired shall be subject to the terms of any adjudica- tion decree. Parties who may be affected are made defendants; and on conclusion of the trial the court may enter an interlocutory or perma- nent decree allowing the appropriation subject to prior adjudicated rights. Failure to comply with the statutory provisions deprives the appropriator of the right to use water as against a subsequent appro- priator mentioned in or bound by a decree of the court.133 The pro- cedure under the present law, originally enacted in 1921, replaced a procedure provided for in 1907 which included posting of notice, prose- cuting the work to completion with reasonable diligence, filing of application with the court to have the ditch capacity determined, examination by an engineer, and order by the court after hearing of objections if any should be filed.134 The supreme court held that in- sofar as the act of 1907 was concerned, the legislature did not intend to declare that one who failed to comply with the terms of the statute, but who in the absence of any conflicting adverse right nevertheless had actually impounded, diverted, and put the water to a beneficial use, should acquire no title thereto;185 but that the 1921 legislature unques- tionably intended that an appropriation of the waters of an adjudicated stream should not be made thereafter without a substantial compliance with the requirements of the statute then enacted, and that the method prescribed therein must be held to be exclusive.138 One who thus ap- propriates water from an adjudicated stream is simply a junior appro- priator, with the rights and disabilities of an appropriator whose right is junior to the rights adjudicated in the original decree.137 li2Vidal v. Kensler, 100 Mont. 592, 594-595, 51 Pac. (2d) 235 (1935). As recently as 1949 the supreme court stated that a person may make a valid appropriation of water by actual diversion and use thereof without filing a notice of appropriation as defined in the sections of the statute relating to the appropriation of unadjudicated waters: Clausen v. Armington, - Mont. -, 212 Pac. (2d) 440,447-448 (1949). 138 Mont. Rev. Codes 1947, Ann., §§89-829 to 89-844; Mont. Laws 1921, ch. 228. 134 Mont. Laws 1907, ch. 185. 136Donich v. Johnson, 77 Mont. 229, 246, 250 Pac. 963 (1926). The ques- tion as to whether the method provided by the 1907 law was intended to be exclusive had been reserved in Anaconda National Bank v. Johnson, 75 Mont. 401, 409, 244 Pac. 141 (1926). 188 Anaconda National Bank v. Johnson, 75 Mont. 401, 411, 244 Pac. 141 (1926); Donich v. Johnson, 77 Mont. 229, 246, 250 Pac. 963 (1926). 181 Quigley v. Mclntosh, 88 Mont. 103,109, 290 Pac. 266 (1930). |