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Show 330 APPROPRIATION OF WATER (d) Force and effect of an application to appropriate water. An ap- plication to the State administrator for a permit to make an appropria- tion of water is not an appropriation. And the applicant is not an appro- priator. Practical effects of filing an application that conforms to all the statutory requirements are: The applicant gives formal notice of his intention to acquire the water right in question. He places his proposal in line for consideration by the State authorities. If the water right is eventually acquired by performance of all acts made necessary by the statute and the rules and regulations, its priority is determined by the time of filing the application. The applicant has the right to have his application considered and acted upon by the properly constituted authorities.521 But unless and until the statutory requirements and conditions are met, the applicant obtains no property right or any other right against the State.522 The Utah Supreme Court holds that when an application to appropriate water lapses without having occurred as a result of fraud or mistake on the part of the State Engineer, he is without authority to reinstate the original priority date.523 The discussion under "Restrictions and Preferences in Appropriations of Water," emphasizes that in most of the States that have administrative procedures governing appropriation of water, no one has the unqualified right to make an appropriation. If an intending appropriator possesses the requisite qualifications therefor, he may ask the State for the privilege of acquir- ing such a right. It is true that an application that conforms to all statu- tory requirements is entitled to approval by the State administrator. But one of these prerequisites is that the administrator shall consider questions, not only of availability of unappropriated water, but also the possibility of conflict with the public interest should the appropriation be consummated, including the possibility that use of the water for some other purpose than that proposed by the applicant may better serve the public welfare. The foregoing question may arise in the event that two or more conflicting applications are pending in the State office at the same time.524 It may also 521 "The board shall consider and act upon all applications for permits to appropriate water and shall do all things required or proper relating to such applications." Cal. Water Code § 1250 (West Supp. 1970). 522East Bay Municipal Utility Dist. v. State Department of Public Works, 1 Cal. (2d) 476, 480-481, 35 Pac. (2d) 1027 (1934). 523MosbyIrr. Co. v. Criddle, 11 Utah (2d) 41,46, 354 Pac. (2d) 848 (1960). 524In Baeth v. Hoisveen, 157 N.W. (2d) 728, 733-734 (N. Dak. 1968), the court stated that it did not approve of the State Water Commission's granting to one of two owners of adjacent lands overlying an underground stream who had applied "at ap- proximately the same time ... so much water that the other was in effect denied use of any water." This case is discussed in more detail in chapter 6 under |