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Show 384 APPROPRIATION OF WATER earlier,789 the act of completion from which the priority of the right relates back to the beginning may be (a) completion of construction of works, or (b) application of water to beneficial use, depending upon the era and the statutes and court decisions in point. Under the current statutes regulating appropri- ations of water under permit from the State Engineer, completion of appropri- ation invariably refers to actual application of the water to beneficial use. Therefore, as between two persons digging ditches at the same time, and prosecuting work thereon, with reasonable diligence, to completion, the one who first began work had the prior right, even though the other had completed his first. This was the doctrine of "relation back."790 While, then, in the absence of a statute requiring notice, or other action, the right relates back to the time when the first step was taken, "it does not apply, or protect the intending appropriator however, unless he prosecutes his work of diversion with reasonable diligence."791 In such case, the priority "generally dates from the time when the work is completed or the appropriation is fully perfected."792 This would usually be "the time of actual application of the water" to the intended beneficial use.793 Until this is done, the claimant's rights are inchoate.794 Relation back is not to be confused with the perfecting of title to the water right. The title is perfected when the appropriation is complete, whether or not diligence was exercised. When completion of the appropriation occurs, then the priority dates back, by operation of the doctrine of relation to the beginning of the work, provided that the invariable prerequisites have been fulfilled.795 (2) Reason for the doctrine. In a very early case, the California Supreme Court observed that the right of relation back was necessary for the protection Pac. 845 (1896); Union Mill & Min. Co. v. Dangberg, 81 Fed. 73, 109 (C. C. D. Nev. 1897); N. Mex. Stat. Ann. § 75-1-2 (1968); N. Dak. Cent. Code Ann. § 61-01-03 (1960). 789 Under "What Constitutes Completion of Appropriation-Completion of construction" and "Application of water to beneficial use." 790Murray v. Tingley, 20 Mont. 260, 268, 50 Pac. 723 (1897). 791 Rio Puerco In. Co. v. Jastro, 19 N. Mex. 149, 153, 141 Pac. 874 {\9\4);Still v. Palouse In. & Power Co., 64 Wash. 606, 612-614, 117 Pac. 466 (1911). 192Ophir Silver Min. Co. v. Carpenter, 4 Nev. 534, 543, 544 (1869). 793Maricopa County M. W. C. Dist. v. Southwest Cotton Co., 39 Ariz. 65, 102-103, 4 Pac. (2d) 369 (1931). 794 An 1889 decree had both absolute and interlocutory features. "At the time of the entry of the decree, the court established in each ditch an absolute right to the full amount of water per second of time that had been applied to a beneficial use, and gave such appropriation a number, and, to that extent, it was absolute. It tentatively recognized an inchoate right to additional water, which inchoate right, if of any validity, might become an absolute right, under the doctrine of relation, if the water was applied to a beneficial use with due diligence." Crawford Clipper Ditch Co. v. Needle Rock Ditch Co., 50 Colo. 176, 181, 114 Pac. 655 (1911). 19SKimball v. Gearhart, 12 Cal. 27, 29-30 (185 9); Nevada County & Sacramento Canal Co. v. Kidd, 37 Cal. 282, 311 (1869). |
