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Show 376 APPROPRIATION OF WATER pecuniary inability, occupation with other work, and other conditions incident to the person-are not generally recognized as excusing great delay in the construction of works necessary to actual diversion and use of water.7S0 (2) Lack of pecuniary means. The distaste for impecuniosity as an excuse for not prosecuting and completing the work of appropriation with reasonable diligence within a reasonable time has appeared in the court decisions from early times.751 "Financial inability is not under the statute, as it was not without the statute, such a cause as will excuse lack of diligence in the prosecution of the work."752 However, some of the statutes list cost of the work as a factor for consideration by the administrator.753 (3) Lack of pecuniary means: Leniency under exceptional or uncontrollable circumstances. The Oregon Supreme Court recognized the general rule before the water code of 1909 was enacted.754 However, even prior to the national financial depression that reached its intensity in the early 1930's, leniency was shown where great difficulties were encountered and exceptionally high expenditures were found necessary.755 And in a decision rendered in 1932, the supreme court gave controlling weight to the impact of the depression in ordering an extension of time within which an appropriation under the water code could be completed.756 750Grant Realty Co. v. Ham, Yearsley & Ryrie, 96 Wash. 616, 624, 165 Pac. 495 (1917). Cal. Admin. Code tit. 23, § 779 (1969). lslKimball v. Gearhart, 12 Cal. 27, 31 (1859); Mitchell v. Amador Canal & Min. Co., 75 Cal. 464, 482-483, 17 Pac. 246 (1888). 152Rio Puerco In. Co. v. Jastro, 19 N. Mex. 149, 155, 141 Pac. 874 (1914). See also Carbon Canal Co. v. Sampete Water Users Assn., 19 Utah (2d) 6, 425 Pac. (2d) 405, 409 (1967). 753 For example, in fixing permit times for completion, the Director "shall take into consideration the cost and magnitude of the project and the engineering and physical features to be encountered." Wash. Rev. Code § 90.03.320 (Supp. 1961). For good cause shown, the Department may extend the period for completion "if the magnitude, physical difficulties and cost of the work justify extension." Ariz. Rev. Stat. Ann. § 45-150(1956). 754 "The authorities clearly show that the claimant's pecuniary condition is not an excuse, and, though the doctrine may seem harsh, it is nevertheless right." Cole v. Logan, 24 Oreg. 304, 310-311, 33 Pac. 568 (1893); Oviatt v. Big Four Min. Co., 39 Oreg. 118, 126-127,65 Pac. 811 (1901). 15SIn re Owyhee River, 124 Oreg. 44, 48-49, 259 Pac. 292 (1927); State ex rel. Van Winkle v. People's West Coast Hydro-Electric Corp., 129 Oreg. 475, 483-484, 278 Pac. 583 (1929). Under such circumstances, where the claimants pursued their work to the best of their ability, such showing was given considerable weight in determining the question of diligence. 1S6In re White River and Its Tributaries, 141 Oreg. 504, 515-519, 16 Pac. (2d) 1109 (1932). 'The law does not require of an appropriator extraordinary efforts or impossible things. At a time when moratoriums are considered and banks take long holidays and many of them close, the question of finances, it seems to us, must of necessity be taken into account in determining as to the diligence and good faith of the company in completing its appropriation." |