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Show METHODS OF APPROPRIATING WATER OF WATERCOURSES 375 Determination of what constituted reasonable diligence in connection with the nonstatutory appropriations was within the sound discretion of the courts.742 In determining the question in an early case, the California Supreme Court said that consideration might be given to such surrounding circumstances as nature of the country, climate, and difficulty of procuring labor and materials.743 Some circumstances excusing delays.- Some of the early posting and filing statutes declared that work must be prosecuted diligently and uninterruptedly to completion, but carried a proviso excusing temporary interruptions caused by snow or rain.744 Magnitude of the undertaking has been mentioned as an item for consideration in determining whether construction work was completed within a reasonable time.74s A Texas court of appeals felt that the failure of an irrigation project, which was watering thousands of acres under its appropri- ation, to build distribution works to furnish water to a particular or small tract of land should not constitute a failure within the meaning of the statutes to prosecute its project "diligently and continuously to completion."746 Drainage necessities and water shortage were considered an excuse in Nevada.747 The Montana Supreme Court indicated its belief that a farmer struggling for a livelihood, who cultivates his land and irrigates it as fast as he is able to provide the means, may not be guilty of unreasonable delay in applying his water to beneficial use.748 Yet 2 years later, in a case arising in Montana, a Federal court cautioned that in determining the question of reasonableness the effect on later appropriators must be taken into account. In view of the rights of newcomers, said the court, there should be no unnecessary delay on the part of the earlier settlers.749 All this simply supports the concept that circumstances affecting diligence vary with each particular case, and that the judgment varies accordingly. Some inexcusable circumstances. -(1) In general. Obstructive weather conditions and matters incidental to the enterprise itself that could not reasonably be avoided, therefore, have been accepted in certain cases as excusing delay. But matters personal to the appropriator-such as sickness, 142Morris v. Bean, 146 Fed. 423, 427 (C. C. D. Mont. 1906). 1A3Kimball v. Gearhart, 12 Cal. 27, 30 (1859). 744Cal. Civ. Code § 1416 (1872); Nebr. Laws 1889, ch. 68, § 9. nASBailey v. Tintinger, 45 Mont. 154, 178-179, 122 Pac. 575 (1912); Oviatt v. Big Four Min. Co., 39 Oreg. 118, 126-127, 65 Pac. 811 (1901); Water Supply & Storage Co. v. Larimer & Weld In. Co., 24 Colo. 322, 325, 51 Pac. 496 (1897). Compare Antero & Lost Park Res. Co. v. Ohler, 65 Colo. 161, 162-163, 176 Pac. 286 (1918), and dissenting opinion by Justice Garrigues. "'Fairbanks v. Hidalgo W. I. Dist. No. 2, 261 S. W. 542, 546 (Tex. Civ. App. 1923, error dismissed). 747 Rodgers v.Pitt, 129 Fed. 932, 941-942 (C.C.D. Nev. 1904). 748Arnold v. Passavant, 19 Mont. 575, 580-581, 49 Pac. 400 (1897). 749 Cruse v. McCauley, 96 Fed. 369, 372 (C. C. D. Mont. 1899). |