OCR Text |
Show 294 APPROPRIATION OF WATER Limited value ofposting and filing.-In this aspect of providing evidence for the handling of conflicting priorities of right, the provisions of the several statutes had value in providing at least a prima facie record of initiation of the appropriation. That, however, was their chief practical contribution to a solution of western water problems. Objection to the requirement for posting notice at the point of intended diversion was that this place might be so isolated as to be seldom seen by human beings. Or it might be so far from ditches of other appropriators as not to come to their attention. Many important streams ran through more than one county. In States that required recordation only in the county in which the diversion was located, an interested party might have to visit several county seats in order to keep informed.367 The statutory procedures were optional with the intending appropriator. By using the prevailing statute, he obtained the advantage not only of having his claim on file in the official county records, but also of having his priority relate back to the first procedural step as against other claimants who chose to ignore the statute. But under most of the statutes, the validity of an appropriative right obtained by diversion and use without complying with the statute was equal to that of a right completed under the statutory provisions. For example, the Utah posting and filing statute was not enacted until irrigation develop- ment in the jurisdiction had been in progress for a half-century.368 A report says that very few parties took advantage of this law and that it was therefore practically useless.369 Testimony of other parties was still necessary in establishing an appropria- tive right. The notice of intention posted and filed as required by the law, whatever value it may have had in resolving conflicting priorities, proved to be of little or no use in establishing the extent of an appropriative right. In appraising the posting and filing method, it is necessary to consider how little the settlers who came from the East into a new western community knew about water measurement methods, or even estimates of water flow. Harding emphasizes the facts that although the posting and recording of the notice was a required item in the enactment of an appropriative right under the Civil Code and other statutes, no limitation was placed on the quantity of water that might be claimed, and that no fees proportional to the quantity stated in the notice were imposed. He points out further that many early appropriators had little definite knowledge of their actual needs, and that many plans were indefinite at the time the notice was posted; that many of these people had little knowledge of water measurement and claimed quantities entirely out of 367 The Arizona statute provided for recording the notice in each county through which the canal passed, but not in each county through which the stream flowed. Ariz. Laws 1893, No. 86. 368 Utah Laws 1897, p. 219 et seq. 369Teele, R. P., "Report of Irrigation Investigations in Utah," U. S. Dept. Agr. Bull. 124, p. 25 (1903). |