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Show METHODS OF APPROPRIATING WATER OF WATERCOURSES 347 effect of the constitutional provision on the acquisition of water rights for irrigation and purposes other than power was not altered by the amendment. The Idaho Supreme Court construed this constitutional declaration as authorizing a person to appropriate the water of a stream simply "by actually diverting the water and applying it to a beneficial use."603 In view of this provision in the fundamental law, said the court, legislation providing for a specific procedure for appropriating water does not thereby set up an exclusive method. A right may still be acquired by diversion and use of the water without conforming to statutory requirements.604 In Nielson v. Parker, the supreme court stated that so far as it had been advised, it never was the intention of the legislature to cut off the right an appropriator and user of water might acquire by actually diverting and applying the water to beneficial use. This, said the court, constituted actual notice to every intending appropriator of water of such stream.605 The 1903 legislature, in enacting the administrative statute, may indeed have had no intention of impairing the validity of an appropriation initiated under the previous law and carried to completion with reasonable diligence under the present one. As a general principle of statutory water law, the legislature certainly would not be suspected of intending any such thing. So far as rights already initiated are concerned, it is commonly the intent of the framers of a new statute to recognize inchoate rights and to allow them to be perfected. But as to future rights, the literal language of the 1903 statute is that all rights to divert and use water "shall hereafter" be acquired under the provisions of the new law. No succeeding legislature repealed this provision.606 In the first report of the Idaho State Engineer, it is stated that the irrigation law enacted in 1903 "completely changed the manner of obtaining rights to divert and use the waters of the streams of the State."607 It was after this, in 1905, that the Idaho Supreme Court first declared that the administrative provision in the new statute was not exclusive.608 The actual decision in this case had to do with relative priorities of (a) a right initiated before the new enactment took place and completed thereafter and (b) an appropriation initiat- ed under the new law. However, it was cited by the same court a few years later as upholding appropriation by mere diversion and application to beneficial use despite statutory laws that established a formal procedure.609 603Sand Point Water & Light Co. v. Panhandle Development Co., 11 Idaho 405, 413-414, 83 Pac. 347 (1905). 604Nielson v. Parker, 19 Idaho 727, 730-731, 733, 115 Pac. 488 (1911). See also Bachman w.Reynolds In. Dist., 56 Idaho 507, 514, 55 Pac. (2d) 1314 (1936). 605Nielson v. Parker, 19 Idaho 727, 733, 115 Pac. 488 (1911). 606 Idaho Laws 1903, § 41, Code Ann. § 42-201 (1948). 607 Biennial Report, State Engineer to Governor of Idaho, p. 7 (1903-1904). 608Sand Point Water & Light Co. v. Panhandle Development Co., 11 Idaho 405, 412-414, 83 Pac. 347(1905). 609Nielson v. Parker, 19 Idaho 727, 730-731, 115 Pac. 488 (1911). |
