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Show 292 APPROPRIATION OF WATER (3) A variation from the California plan of prescribing posting of notice as the initial statutory step in making an appropriation was to require the formalities to begin within a specified time after commencement of the construction work. This was done in the 1888 Wyoming act noted above. Before that, it was declared by the legislatures of Colorado and of Dakota Territory in 1881, and subsequently by Texas in 1889 and New Mexico in 1891.362 The 1881 Colorado statute provided that no priority of right should attach until the statement was recorded. The amendment of 1887 required filing not only with the county clerk, but also in the office of the State Hydraulic Engineer. If filed within the time limit, the priority of the right dated from commencement of the work, otherwise from the date of filing. The Dakota statute required first a filing of the location certificate in the county, followed by posting a copy thereof at or near the canal heading. Failure to commence work within 60 days and to prosecute the project to completion without unnecessary delay constituted abandonment of the right. In the Texas act of 1889, the claimant was required to record a sworn statement within 90 days after commencing work, by compliance with which his right related back to such commencement. New Mexico similarly required a recording within 90 days, required completion of the work within 5 years, and provided that no priority of right for any purpose should attach until the record was made. (4) The last of these early procedural laws were enacted at the close of the 19th century-Oklahoma in 1897 and Nevada in 1899.363 The Oklahoma statute provided for filing claims with the county recorders of deeds. Nevada provided for appropriating water solely upon application to county boards of water commissioners, consisting of the county commissioners and county surveyor. Whether the county should avail itself of the provisions of the act was left to the discretion of each county board. Apparently, this law was not generally put into effect. Inadequacies of the Preadministrative Procedures In the early days of water uses in the several Western States and Territories, local customs in making appropriations predominated, and legislation was either absent or was ineffectual in guiding the intending appropriator in acquiring his right. The California gold miners either invented a system of 362Colo. Laws 1881, p. 161; Laws 1887, p. 314. The 1881 act was declared unconstitu- tional on the ground that the subject matter was not adequately stated in the title of the act: Lamar Canal Co. v. Amity Land & In. Co., 26 Colo. 370, 376-377, 58 Pac. 600 (1899). Terr. Dak. Laws 1881, ch. 142; Tex. Gen. Laws 1889, ch. 88; N. Mex. Laws 1891, p. 130. 363Okla. Laws 1897, ch. 19; Nev. Laws 1899, ch. 97. Although Nev. Laws 1866, ch. 100, provided for county records of certificates of intention to construct or maintain ditches or flumes, the State supreme court expressed its opinion that this act was not a recognition of the right of prior appropriation of water for irrigation purposes: Barnes v. Sabron, 10 Nev. 217, 232 (1875). |