OCR Text |
Show 214 PROTECTION OF WATER RIGHTS IN WATERCOURSES INCHOATE APPROPRIATIVE RIGHT The nature and extent of the inchoate appropriative right is considered in the last part of chapter 8.127 .Following are some considerations regarding the protection of such inchoate rights. (1) The view of the California courts in cases involving water rights existing prior to enactment of the Civil Code in 1872 was that before making any actual diversion or use of the water, a claimant might acquire an incipient, incomplete, and conditional right to the future use of the water by beginning the construction of works and diligently prosecuting the same toward completion. In 1912, the California Supreme Court said, "There is no case, arising prior to the enactment of the code, whicii holds that the party who thus in good faith began and diligently prosecuted the work on a dam and ditch for the diversion and use of water, could not protect his incipient right to the water, against the hostile diversions and claims of others, by an appropriate suit for that purpose."128 Considering together this 1912 case and a much earlier one129 distinguished in the later decision, the rule apparently was that the holder of an inchoate right who had begun the construction of his works and was prosecuting the work diligently could not obtain damages from someone who began use of the water before he himself was ready to take it, but that he nevertheless had a substantial right in real property which he could protect against invasion by an appropriate suit for that purpose. An intending appropriator on the public domain acquired a possessory right to continue with diligence the prosecution of the work until completion, which possessory right was good as against all the world but the United States.130 It was likewise held that an appropriator under the California Civil Code acquired an incomplete right pending the time of completion of his appropriation, which was an interest in the realty, and was entitled to maintain an action to determine the validity of a conflicting claim adverse to his own claim.131 He was entitled to a judgment protecting his interest, if valid, pending completion of his appropriation, which judgment "should only declare and This aspect of the junior appropriator's right merges into the topic "Exchange or Substitution of Water" which is discussed in chapter 9 under "Natural Channels and Reservoirs-Use of Natural Channel." 127 Under "Inchoate Appropriative Right." lMInyo Consol. Water Co. v.Jess, 161 Cal. 516, 519, 119 Pac. 934 (1912). See alsoHaight v. Costanich, 184 Cal. 426, 431-432,194 Pac. 26 (1920). 129Nevada County & Sacramento Canal Co. v. Kidd, 37 Cal. 282, 313 (1869). 130The California Supreme Court said: "The property rights which do accrue are such as to protect the appropriator from the acts of all persons-saving the paramount authority. So far as the United States itself is concerned, it is under no justiciable duty in law or equity to such an appropriator until his work shall have been completed." Silver Lake Power & In. Co. v. Los Angeles, 176 Cal. 96,101-103,167 Pac. 697 (1917). i31Inyo Consol Water Co. v.Jess, 161 Cal. 516, 520-521, 119 Pac. 534 (1912). |