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Show METHODS OF APPROPRIATING WATER OF WATERCOURSES 385 of prior appropriators. If the right were not to commence until completion of the canal, the value of a large water right could be destroyed by a small appropriation made after nearly the entire work on the prior appropriation had been completed.796 In a stream adjudication decision rendered nearly three-quarters of a century later, the Oregon Supreme Court expressed much the same thought. Diligence and relation back must be considered together, said the court, because the rule with its basis on diligence grew out of necessity through conflicting claims of settlers in the arid districts. "Except for its application the doctrine of appropriation would have resolved itself into a scrambling rush for the possession of the water right, and the question would always be decided in favor of the one who either had the most money or the one who had the least to do to effect a diversion of water."797 (3) Initiation of the claim. The date to which the completed right related back was variously referred to as initiation of the claim, commencement of the appropriation, or first step in appropriating water. In the absence of a well-recognized custom (as well as absence of statute), the first act must have been such as to indicate the intention of appropriating the water in such manner as to put a prudent man upon inquiry.798 This may have been the giving of notice of intention to appropriate water;799 or the beginning of construction of a diversion dam or ditch or other appliance by means of which the appropriation is effected;800 or the commencement of surveys for the canal route.801 Trivial labor and small expenditures will not carry the appropriation back by relation to the "first substantial act of the appropriator for its acquisi- tion."802 There must be an open, notorious, physical demonstration, conclu- sively indicating a fixed purpose of pursuing and, within a reasonable time, acquiring a water right.803 In an interstate case, the United States Supreme Court expressed its view that under the doctrine of appropriation as applied in the States that were parties to the controversy, in the absence of statute, the right when perfected by use is deemed effective from the time the purpose to make the appropriation is definitely formed and actual work on the project is 796 Conger v. Weaver, 6 Cal. 548, 558 (1856). 191 In re Hood River, 114 Oreg. 112, 142, 227 Pac. 1065 (1924). 79*Kimball v. Gear hard, 12 Cal. 27, 31 (1859). 799De Necochea v. Curtis, 80 Cal. 397, 401, 20 Pac. 563, 22 Pac. 198 (1889). 800Kelly v. Natoma Water Co., 6 Cal. 105, 108 (1856); Union Mill & Min. Co. v. Dangberg, 81 Fed. 73, 109 (C. C. D. Nev. 1897). 601 Conger v. Weaver, 6 Cal. 548, 558 (1856). Early Wyoming Territorial statutes directed that the beginning of all necessary surveys should be considered as commencement of the work of construction: Wyo. Laws 1886, ch. 61, § 13; Laws 1888, ch. 55, § 12. 802Klug v. Ireland, 99 Colo. 542, 543, 64 Pac. (2d) 131 (1936). *03HolbrookIrr. Dist. v. Fort Lyon Canal Co., 84 Colo. 174,190, 269 Pac. 574 (1928). 450-486 O - 72 - 27 |