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Show METHODS OF APPROPRIATING WATER OF WATERCOURSES 379 Granted that the two conditions are met in such an enterprise involving gradual development, any subsequent appropriator diverts water subject to such prior claim.767 The priority of the entire right, if progressively developed properly, relates back to the date on which it was initiated.768 But if the diligence required in developing the right is not exercised, rights of other appropriators that are initiated after the expiration of an allowable time for reasonable use become fixed as against the original appropriator, with priorities attaching to their own initiation dates. Hence, they take precedence over any enlargement-which is viewed as an attempted new appropriation-that the original appropriator may attempt after these other rights intervene.769 Early in the 20th century, the Oklahoma Supreme Court recognized the right to make gradual or progressive development without loss of priority where one continuous project is carried on with no lack of diligence. But the court imposed a qualification which, to this author's knowledge, is unique in western jurisprudence. This qualification is (a) that the original priority of the senior appropriator would extend to the quantity of water actually applied by him to beneficial use at the time a junior appropriator made his appropriation; (b) but that after this quantity is taken by the senior, the junior's right would become effective with respect to the quantity of water he applied to beneficial use; after which (c) the senior's right would again attach to any excess.770 This of course disregards the doctrine of relation. It is squarely in conflict with the authorities cited in the immediately preceding paragraph, which adhere to the general western rule. In Cole v. Logan, the Oregon Supreme Court cautioned that the privilege of gradual development without loss of priority does not mean that the appropriator can suspend his improvements for an unreasonable time and then, by adding to the area of his cultivated land, be restored to his original individual diversion as against subsequent appropriators who have acquired rights in the stream.771 And the Montana Supreme Court declared that the 767Kleinschmidt v. Greiser, 14 Mont. 484, 497, 37 Pac. 5 (1894). Otherwise, said the Montana Supreme Court, in overruling the trial court, "The priority under such rule would depend largely upon the time appropriators brought their lands under cultivation, and not upon the priority of appropriation and diversion of the water necessary to irrigate the land owned by the appropriator, as the law provides." To the same effect: Cole v. Logan, 24 Oreg. 304, 311, 33 Pac. 568 (1893). 768/son v. Sturgill, 57 Oreg. 109, 116, 109 Pac. 579, 110 Pac. 535 (1910). Applied to the circumstances of a large project: In re Deschutes River and Tributaries, 134 Oreg. 623, 649, 286 Pac. 563, 294 Pac. 1049 (1930). ™Oliver v. Skinner & Lodge, 190 Oreg. 423, 437-438, 226 Pac. (2d) 507 (1951). See Washington v. Oregon, 297 U. S. 517, 528-529 (1936). 770 Gates v. Settlers'Mill, Canal &Res. Co., 19 Okla. 83, 89-91, 91 Pac. 856 (1907). 771 Cole v. Logan, 24 Oreg. 304, 312, 33 Pac. 568 (1893). In such event, his appropriation would be confined to his necessary use as applied to the lands he brought under cultivation within a reasonable time before any subsequent rights accrued. |
