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Show METHODS OF APPROPRIATING WATER OF WATERCOURSES 371 Under the administrative method of appropriating water, the intent is expressed in the application for a permit in whatever particulars the State agency requires. Diversion of water. -Actual diversion of water from the stream is also stressed in various decisions,721 including such language as " * * * a completed ditch, actually diverting water,* * * "722 and " * * * an actual diversion from the stream,* * *."723 Parties who offered no proof of their diversion of water from a stream were held to have failed to establish an appropriation of the water.724 However, there are cases in which the diversion requirement was satisfied by natural overflow from the stream, as well as those in which it was denied. The necessity and materiality of diversion are discussed in chapter 9 under "Diversion, Distribution, and Storage Works." In an application for a permit to appropriate water, the means of diversion is specified. If approved by the administrator, it is authorized in the permit. Completion of construction.-Under "Development of the rules," above, it has been brought out that the early "possessory system" of appropriative rights contemplated prosecution of construction work diligently and continuously to completion, whereupon the would-be appropriator acquired a completed water right (subject to abandonment for nonuse) without the necessity of promptly putting the water to actual use. This theory was developed in various court decisions. It was reflected in some of the preadministration statutes, either specifically or by necessary implication as judicially construed. However, some other courts held that appropriations made before pre- administration statutes went into effect were not complete until the water had been applied to beneficial use. Here the statutes changed the rule with respect to appropriations made in compliance with their provisions, but not as to those persons who, deliberately or otherwise, ignored the legislative requirements. Under the water administrative-permit statutes now in force, an appropri- ation is not deemed complete at the time construction work is finished. In three of these States a certificate of completion of construction is given to the 721 In a New Mexico case, water impounded in a reservoir on a public watercourse, part being intended for later use and part held in storage for flood control, was held, for lack of diversion and application to beneficial use, to be not appropriated: State ex rel. State Game Commission v. Red River Valley Co., 51 N. Mex. 207, 223-224, 182 Pac. (2d) 421 (1945). 722Murray v. Tingley, 20 Mont. 260, 269, 50 Pac. 723 (1897). ™Rodgers v. Pitt, 129 Fed. 932, 939-940 (C.C.D. Nev. 1904). 724Sherlock v. Greaves, 106 Mont. 206, 216, 76 Pac. (2d) 87 (1938). "* * * repeatedly decided in this jurisdiction" that an actual diversion is necessary to an appropriation: Windsor Res. & Canal Co. v. Lake Supply Ditch Co., 44 Colo. 214, 217, 98 Pac. 729 (1908). To preserve a water right, it is necessary to provide means for continual diversion of the water from its natural channel: McPhail v. Forney, 4 Wyo. 556, 561, 35 Pac. 773 (1894). |
