OCR Text |
Show 348 APPROPRIATION OF WATER Other than with respect to the date of priority of the right, there is no superiority of right obtained under either of these methods over that obtained under the other method. Under the statutory procedure, priority of the completed right relates back to the time of filing the application for a permit with the State administrator and so dates its inception therefrom. Under the "constitutional" method, the priority dates from the time of completion of the appropriation-the time of applying the water to beneficial use.610 The act of 1903, according to the Idaho Supreme Court, was intended to provide an exclusive method by which an appropriator should be entitled to the benefit of the doctrine of relation.611 In order to obtain the benefit of the doctrine of relation, it is necessary that in all respects the statutory procedure be followed strictly.612 This valuable legal device that is accorded to the statutory appropriator who conforms strictly to the procedural requirements thus results in preserving the priority intact pending completion of the project. This is true, even though years elapse before making final proof and obtaining a license. A "constitu- tional" appropriator, on the contrary, has no priority to protect prior to completion of his project. Thus, he may find his right subordinate to those of others who both make proper filings with the administrator before the constitutional right is perfected and also complete their appropriations in proper time thereafter. The practical advantages of the statutory method in a competitive area, particularly in the case of a large project, become evident. The "constitutional" appropriator has no fees to pay to the State in acquiring his right. Nevertheless, he is under a disadvantage with respect to necessary records when the times come for him to assert or to defend his right against other claimants. Unless forewarned as to the value of keeping records, he may fail to do so until, with passage of time, competent evidence becomes increasingly difficult to obtain. For the statutory appropriator, on the other hand, a continuing record is kept in the State administrator's office with respect to all matters of initiation, process of acquisition, and perfection of the appropriation. Storage Water Appropriation Public Policy Recognition of reservoir storage as one of the chief features of water utilization appears in the water rights jurisprudence throughout the West. Storage is a means of conserving water, by capturing it when plentiful and holding it back for future use, as well as an implement in flood protection programs. Thus, with use of upstream reservoirs, spring floodflows may not only be prevented from inundating downstream lands, but may be stored and 610 Crane Falls Power & In. Co. v. Snake River In. Co., 24 Idaho 63, 81-82, 133 Pac. 655 (1913). 611 Reno v. Richards, 32 Idaho 1, 11, 178 Pac. 81 (1918). 612Big Wood Canal Co. v. Chapman, 45 Idaho 380, 405-406, 263 Pac. 45 (1927). |