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Show METHODS OF APPROPRIATING WATER OF WATERCOURSES 369 beneficial use or uses authorized in the permit. In a majority of the States, this act is evidenced by a license or certificate of appropriation. Thus in Idaho, under the statutory administration statute, "no appropri- ation is complete until the water has been applied to a beneficial use." Thereupon the permittee is entitled to the issuance of a license which is prima facie evidence of his water right. But the statutory procedure is not the exclusive method of appropriating water in this State. An intending appropri- ator may follow the "constitutional" method in disregard of the statute. In this event, he "must depend upon actual appropriation, that is to say, actual diversion and application to beneficial use."711 The same necessity of completing an appropriation by application of the water to the intended beneficial use prevails under the current statutes of Nebraska and Texas which, however, do not provide for issuance of evidentiary documents such as a license or certificate. The fact that the permit is the last document to be issued does not affect in any way the requirement of beneficial use. (6) Nonpermit statutes. In Colorado, the appropriation "is completed when the ditch or conduit is constructed and the water is diverted therethrough and applied to a beneficial use."712 In Montana, there are two water appropriation statutes. One applies to adjudicated waters, the other to waters of streams that have not been adjudicated. The Montana statute pertaining to unadjudicated waters is permissive in operation; but to obtain the benefit of the doctrine of relation, it must be followed. It provides for posting a notice, filing notice in the county records, beginning construction within a prescribed time, and prosecuting "the same with reasonable diligence to completion."713 Said the Montana Supreme Court: "These are all the requirements of the Code, and by what authority shall any additional exaction be made? * * * from one who proceeds under the statute, actual use of the water cannot be exacted as a prerequisite to a completed appropriation."714 A considerable number of decisions of the Montana Supreme Court involved appropriations made after enactment of the first statute of 1885, but not in compliance therewith. In stating, in a number of these cases, the circumstances lllBasinger v. Taylor, 30 Idaho 289, 299, 164 Pac. 522 (1917), 36 Idaho 591, 598, 211 Pac. 1085 (1922). lliArchuleta v. Boulder & Weld County Ditch Co., 118 Colo. 43, 53, 192 Pac. (2d) 891 (1948). See also Rocky Mountain Power Co. v. White River Electric Assn., 151 Colo. 45, 48-49, 376 Pac. (2d) 158, 161 (1962); Denver v. Northern Colorado Water Conservancy Dist., 130 Colo. 375, 388, 276 Pac. 992 (1954). See Jefferson County v. Rocky Mountain Water Co., 102 Colo. 351, 361, 79 Pac. (2d) 373 (1938). 713 Mont. Rev. Codes Ann. § § 89.870 and .811 (1964). ^Anderson v. Spear-Morgan Livestock Co., 107 Mont. 18, 27-28, 79 Pac. (2d) 667 (1938), quoting from Bailey v. Tintinger, 45 Mont. 154, 173-174, 122 Pac. 575 (1912). 450-486 O - 72 - 26 |
