OCR Text |
Show 370 APPROPRIATION OF WATER connected with completed appropriative rights, the court included words denoting actual application of the water to beneficial use.715 The implication of these repeated statements is that actual use of the water is either important, or is essential, in arriving at a determination of completion of an appropriation made without complying with statutory requirements. In no case examined in connection with this study has the Montana Supreme Court specifically held a nonstatutory appropriation to have been complete on completion of the ditch, or other means of diversion and conveyance, prior to any actual use of the water. The current Montana statute pertaining to adjudicated waters provides the exclusive method of appropriating waters from an adjudicated stream or other source.716 This involves a petition to the court and decree thereof. The statutory provision as to completion of such an appropriation is as follows:717 The court may provide by interlocutory decree awarding the appropriation, the condition under which the ditch, aqueduct, dam, or other work, necessary to the complete appropriation, shall be done and the time within which the same shall be completed until the conditions imposed are complied with. Upon a full compliance with the terms prescribed by the court, it shall enter its order and decree establishing the appropriation and fixing the date thereof, which, if the appropriator shall have been diligent in complying with the court order, shall be the date of the filing of the petition. The court may fix a later date if the facts warrant. Intent.-The intention of the appropriator to divert and apply the water to beneficial use-his object and purpose in making the appropriation, his acts and conduct in regard thereto-is stressed in various decisions, particularly the earlier ones.718 It must be a bona fide intention.719 One who locates a water right with intent to hold it for speculation and not for beneficial use gains no rights by simply going through the forms.720 715See Murray v. Tingley, 20 Mont. 260, 261-262, 269, 50 Pac. 723 (1897); Allen v. Petrick, 69 Mont. 373, 384, 222 Pac. 451 (1924); Anaconda National Bank v. Johnson, 75 Mont. 401, 410, 244 Pac. 141 (1926); Musselsftell Valley Farming & Livestock Co. v. Cooley, 86 Mont. 276, 290, 291, 283 Pac. 213 (1929); Vidal v. Kensler, 100 Mont. 592, 594-595, 51 Pac. (2d) 235 (1935); Clausen v. Armington, 123 Mont. 1, 14, 212 Pac. 440 (1949). See also Cruse v. McCauley, 96 Fed. 369, 371 (C.C.D. Mont. 1899); Oscarson v. Norton, 39 Fed. (2d) 610, 613 (9th Cir. 1930). 716 Anaconda National Bank v. Johnson, 75 Mont. 401, 411, 244 Pac. 141 (1926). 717 Mont. Rev. Codes Ann. § 89-834 (1964). """Hewitt v. Story, 64 Fed. 510, 514-515 (9th Cir. 1894); Harkey v. Smith, 31 N. Mex. 521, 525, 247 Pac. 550 (1926). li9Simons v. Inyo Cerro Gordo Min. & Power Co., 48 Cal. App. 524, 536-537, 192 Pac. 144 (1920). 720Miocene Ditch Co. v. Campion Min. & Trading Co., 3 Alaska 572, 586 (1908). |