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Show 488 THE APPROPRIATIVE RIGHT between whom and himself there is no privity of estate. "His appropriation in such a case is a new and independent one, and must stand or fall upon its own merits."259 Summarizing the principle, then: The mere possession by one person of a water right originated by another does not show the requisite privity of estate. In order to make good his claim to the right as of the date at which it was in fact initiated, the possessor must show some contractual relation between himself and the original appropriator, or privity with him under the laws of succession. Otherwise, initiation of the presently claimed right will be fixed as of the date at which possession was taken.260 ELEMENTS OF THE APPROPRIATIVE RIGHT Priority of the Right The Basic Rule The California Supreme Court observed that:261 One of the essential elements of a valid appropriation is that of priority over others. Under this doctrine he who is first in time is first in right, and so long as he continues to apply the water to a beneficial use, subsequent appropriators may not deprive him of the rights his appropriation gives him, by diminishing the quantity or deteriorating the quality of the water.* * * Current Application of the Rule This principle-that priority in time conferred superiority of right-was a sine qua non in appropriation of water from the earliest years of water rights laws in the West. And so it continued without significant exception until, in the latter part of the 19th century, there appeared some constitutional and statutory provisions stating the basic principle of time priority but containing some exceptions in the form of preferences in use of appropriated water in periods of shortage. In addition, under the permit appropriation statutes, there 259 Utt v. Frey, 106 Cal. 392, 396, 39 Pac. 807 (1895); Chiatovich v. Davis, 17 Nev. 133, 136, 28 Pac. 239 (1882);/fearf v. Hale, 38 Mont. 302, 308, 100 Pac. 222 (1909). 260Kenck v. Deegan, 45 Mont. 245, 249, 122 Pac. 746 (1912). See Osnes Livestock Co. v. Warren, 103 Mont. 284, 290, 62 Pac. (2d) 206 (1936). See also Oklahoma Water Resources Bd. v. Central Oklahoma Master Conservancy Dist., 464 Pac. (2d) 748, 752 (Okla. 1968). 261Joerger v. Pacific Gas & Electric Co., 207 Cal. 8, 26, 276 Pac. 1017 (1929). The "fundamental principle of appropriation of water, as distinguished from riparian use, is that he who is prior in time is superior in right to the extent of his appropriation," Caviness v. La Grande In. Co., 60 Oreg. 410, 424, 119 Pac. 731 (1911). A basic principle applicable to all appropriations of water is that "He who is first in time is first in right," Reagle v. Square S. Land & Cattle Co., 133 Colo. 392, 394, 296 Pac. (2d) 235(1956). |