OCR Text |
Show Chapter 8 THE APPROPRIATIVE RIGHT In 1894, a United States Court of Appeals stated what is believed to be the western judicial consensus as to general principles of the appropriative right. At this time, Wyoming's pioneer program of administrative control over acquisi- tion of water rights was just getting under way. Administrative principles were being put into practice, but had not yet been subjected to judicial review. Many western court decisions involving appropriative rights had been rendered. The Federal court's summation was then, and still is, a valid statement of fundamentals in this area of substantive law. The statement follows:1 We consider the law to be well settled that the right to water flowing in the public streams may be acquired by an actual appropriation of the water for a beneficial use; that, if it is used for irrigation, the appropriator is only entitled to the amount of water that is necessary to irrigate his land by making a reasonable use of the water; that the object had in view at the time of the appropriation and diversion of the water is to be considered in connection with the extent and right of appropriation; that if the capacity of the flume, ditch, canal, or other aqueduct, by means of which the water is conducted, is greater than is necessary to irrigate the lands of the appropriator, he will be restricted to the quantity of water needed for the purposes of irrigation, for watering his stock, and for domestic use; that the same rule applies to an appropriation made for any other use or purpose; that no person can, by virtue of his appropriation, acquire a right to any more water than is necessary for the purpose of his appropriation; that, if the water is used for the purpose of irrigating lands owned by the appropriator, the right is not confined to the amount of water used at the time the appropriation is made. He would be entitled, not only to his needs and necessities at that time, but to such other and further amount of water, within the capacity of his ditch, as would be required for the future improvement and extended cultivation of his lands, if the right is otherwise kept up; that the intention of the appropriator, his object and purpose in making the appropriation, his acts and conduct in regard thereto, the quantity and character of land owned by him, his necessities, ability, and surroundings, must be considered by the courts, in connection with the extent of his actual appropriation and use, in determining and defining his rights; that the mere act of commencing the construction of a ditch with the ^Hewitt v. Story, 64 Fed. 510, 514-515 (9th Cir. 1894). Cited were decisions of the supreme courts of California, Nevada, Colorado, and Idaho, and of the Supreme Court of the United States. The instant case arose in California. (437) |