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Show METHODS OF APPROPRIATING WATER OF WATERCOURSES 383 importance lies in its bearing on the priority of an appropriation-its function of holding the claimant's priority intact pending his completion of the approp native process with due diligence, at which time his priority relates back to the time at which acquisition of the right was initiated. The doctrine was recognized by the Supreme Court of California in one of its very early cases, decided within a few years after gold was discovered. The first water rights case in which the doctrine was expounded appears to have been Kelly v. Natoma Water Company, decided in 1856.785 Reference was made to Stark v. Barnes, an 1853 decision (not a water case) wherein a correct statement of the doctrine was said to be that " 'where a number of acts are to be performed, in virtue of which a right accrues, the time of performance of the last act, when all have been performed in good faith, relates back to the commencement of the series of acts which create the right, so as to make it perfect when the first act was being commenced.' "786 In the Kelly case the supreme court stated that in the Stark case "the doctrine of relation, as between the acts of the plaintiff, first and last, was simply applied to the thing possessed, and not to the intention of possessing." The actual holding in the Kelly case is that the right does not relate back to the in- tention to appropriate water. The dictum in the case is that it does relate back to the first act of possession in the series of acts constituting the appropriation. In absence of statute.-The doctrine of relation as applied to acquisition of appropriative rights was recognized throughout the West. It was the subject of many court pronouncements.787 (1) Statement of the doctrine. In many court opinions, the doctrine of relation back has been expressed in various ways. The doctrine embodies the features that (a) if a party embarks in good faith upon a project to appropriate water, (b) if he consummates his purpose without unnecessary delay by exercising reasonable diligence in every step required in constructing facilities, diverting water, and completing the appropriation, (c) then although his power of enjoyment will not commence until completion is accomplished, yet his right as against those who initiate their appropriations after he does will have relation back to the time of commencement.788 As discussed 785 Kelly v. Natoma Water Co., 6 Cal. 105, 108 (1856). lt6Stark v. Barnes, 4 Cal. 412, 413-414 (1853). 787 Early adoptions in other jurisdictions following Kelly v. Natoma Water Co. were Ophir Silver Min. Co. v. Carpenter, 4 Nev. 534, 543-544 (1869); Woolman v. Garringer, 1 Mont. 535, 544 (1872); Keeney v. Carillo, 2 N. Mex. 480, 493 (1883); Sieber v. Frink, 7 Colo. 148, 153, 2 Pac. 901 (1884). ™Maricopa County M. W. C. Dist. v. Southwest Cotton Co., 39 Ariz. 65,102-103, 4 Pac. (2d) 369 (1931); Maeris v. Bicknell, 7 Cal. 261, 263 (1857); Ophir Silver Min. Co. v. Carpenter, 4 Nev. 534, 543-544 (1869);Keeney v. Carillo, 2 N. Mex. 480, 483 (1883); Gay v. Hicks, 33 Okla. 675, 682, 124 Pac. 1077 (\9\2);Morgan v. Shaw, 47 Oreg. 333, 336, 83 Pac. 534 (1906); Salt Lake City v. Salt Lake City Water & Electrical Power Co., 24 Utah 249, 264, 67 Pac. 672 (1902); Grant Realty Co. v. Ham, Yearsley & Ryrie, 96 Wash. 616, 623, 165 Pac. 495 (\9\l);Moyer v. Preston, 6 Wyo. 308, 321, 44 |
