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Show 440 THE APPROPRIATIVE RIGHT Under the current administrative control procedures for appropriating water, which prevail in 16 of the Western States,11 this correlation is an essential element in completing and perfecting the water right. In 14 of these States, the appropriator's final step in perfecting the right is making proof of beneficial use of the water, in consequence of which he receives a license or certificate of appropriation from the State.12 In Nebraska and Texas in which the permit is the last document issued by the administrator, the right nevertheless is not completed until the water has been applied to the intended beneficial use. In the 14 States which issue licenses or certificates of appropriation, the administrator puts his stamp of approval on the projected appropriation only when convinced that application of tLe water to beneficial use in accordance with the terms of the permit has been made. In Nebraska and Texas, it is this official's function to ascertain, by reports and investigations, what progress has been made by the permittee and, if the circumstances so justify, to bring proceedings for cancelling the permit. In none of these 16 States does the statute contemplate the acquisition of an appropriative right by any conduct, or any amount of work, short of application of the water to beneficial use. The right of appropriation and the principle of beneficial use are correlated, in both law and practice, in the administrative procedures. The Concurring Judicial Rule The appropriative right does not extend to ownership of the corpus of water while it remains in the natural source of supply. It is a right to the use of the water-a usufruct. Inherent in the right of appropriation are the requirements that the use made of the appropriated water shall be a beneficial one, and that the right to divert and use the water extends only to the quantity actually applied to such beneficial use. The appropriative right, therefore, is not merely a right to the use of the water; it is a right of beneficial use. This is the view that the courts have taken through the years, probably without significant dissent. Various facets of the general rule were involved in many judicial controversies and were discussed in a considerable number of court opinions. Major points follow: Intent to apply water to beneficial use.- An appropriation of water begins with crystallization of the intent of the appropriator to divert and apply water not limited to, domestic, agricultural, irrigation, industrial, manufacturing, mining, power, public, sanitary, fish and wildlife, and recreational uses." Alaska Stat. § 46.15.260(3) (Supp. 1966). "The excepted States are Colorado, Hawaii, and Montana. 12 This is discussed in chapter 7 under "Methods of Appropriating Water of Water- couises-Current Appropriation Procedures-Administrative-Procedural steps in appro- priating water-(8) Certificate of appropriation or license." |
