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Show 388 APPROPRIATION OF WATER completed with reasonable diligence. If the appropriation was not completed with reasonable diligence following the initiation thereof, then the priority date thereof shall be that date from which the appropriation was completed with reasonable diligence. Montana has two nonadministration water statutes, (a) With respect to unadjudicated waters, compliance with the statutory requirements is necessary to invocation of the doctrine of relation back to the time of taking the first step, posting of notice.819 (b) In awarding an appropriation from a source that has been adjudicated, the court by interlocutory decree may prescribe the conditions to be fulfilled. On full compliance, the court enters a decree establishing the appropriation and fixing the date of priority which, if the appropriator has complied diligently, is the date of filing the petition. If the facts warrant, the court may fix a later date.820 In a case decided in 1906 involving rights to the use of water of a stream rising in Montana and flowing into Wyoming, a Federal court cautioned that the early appropriation statutes were not enacted for the purpose of enabling an appropriator to claim by relation to the date when the work was begun, because that was the rule prior to any legislation on the subject with respect to causes in which the work was prosecuted with reasonable diligence. Nor were they ever intended to destroy the right of appropriation by methods other than those defined by them. Their only effect, said the court, was to deny the power of an appropriator who failed to file the notice to claim as of the date of his beginning work. The penalty for such failure in this instance was to limit the right to the time when the water was actually applied and used.821 (See "Completion of Appropriation," above, for circumstances under which completion meant completion of construction of works, and those under which it referred to application of water to use.) Administration statutes.-(1) Relation back to first step. A feature of the modern statutes providing administrative control over the appropriation of water is that the priority of a right that is acquired by full compliance with the law relates back to the date of filing, in the office of the State administrator, the application for a permit to appropriate the water. A majority of the statutes include a concise statement similar to that of Oregon: "The right acquired by an appropriation shall date from the filing of the application in the office of the State Engineer."822 Several add a proviso such as that of New Mexico:" * * * subject to compliance with the provisions of this article, and the rules and regulations established thereunder."823 819Murray v. Tingley, 20 Mont. 260, 269, 50 Pac. 723 (1897). 820 Mont. Rev. Codes Ann. § 89-834 (1964). 821 Morris v. Bean, 146 Fed. 423, 427 (C. C. D. Mont. 1906). 822Oreg. Rev. Stat. § 537.250(3) (Supp. 1969). 823 N. Mex. Stat. Ann. § 75-1-2 (1968). |