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Show METHODS OF APPROPRIATING WATER OF WATERCOURSES 367 irrigation of a specific tract of land or the running of specific machinery. With this change of attitude the law of appropriation is being modified throughout, old decisions are becoming obsolete, and old rules are giving place to new. * * * * [Under the possessory system,] the right to the water is not complete until the water is actually taken into one's possession, or rather, until all work preparatory to the actual use of the water is completed, since that is the equivalent of taking possession; it is the nearest to possession that the nature of the right makes possible. The appropriator acquires no right until he actually takes possession. (2) The theory of this "possessory system," which arose under the practices of appropriating water on the public domain, is reflected in preadministration water statutes as well as decisions of courts. Several of the early western posting and filing statutes provided that construction of the works should be prosecuted diligently and continuously to completion. "Completion" was defined as conducting the water to the place of intended use.703 Some other early statutes did not attempt to define "completion" of the appropriative right, but left the matter open to court interpretation. Thus, the Montana Supreme Court held that under the statute of 1885 actual use of the water could not be exacted as prerequisite to a completed appropriation. On the contrary, compliance with the statute was "the equivalent of actual possession." Hence, a claimant who complied with the statute had a completed appropriation on completion of construction work even before actually applying the water to beneficial use.704 And the South Dakota Supreme Court took a similar view of operations under the 1881 statute of Dakota Territory. In the court's view, this law did not contemplate an actual use prior to a completed appropriation. An appropriation thereunder was complete when the water was diverted into the ditch and the location certificate was filed and posted. The rights were acquired "under the so-called 'possessory basis' of the right of appropriation."705 (3) California. Conflicting statements appear in opinions of the California courts as to just when a nonstatutory appropriation-in the absence of an intervening Civil Code appropriation with its principle of relation back-was deemed complete. Expressions made from time to time differed as to whether the final act was completion of the ditch, or diversion of water, or application of the water to beneficial use. 703Cal. Civ. Code § § 1416 and 1417 (1872); Nebr. Laws 1889, ch. 68, § § 9 and 10; Tex. Laws 1889, ch. 88, § § 6 and 7; Laws 1895, ch. 21, § § 8 and 9. 704Bailey v. Tintinger, 45 Mont. 154, 174, 122 Pac. 575 (1912). 10SButte County v. Lovinger, 64 S. Dak. 200, 209, 266 N. W. 127 (1936). |