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Show 492 THE APPROPRIATIVE RIGHT Capacity of Ditch as a Factor "The early cases measured the appropriator's right by the capacity of his ditch."271 However, by the end of the 19th century, ditch capacity was being generally rejected as a measure of an appropriator's right, at least without full consideration of his necessary beneficial uses.272 Such rejection, that is, was not always sharp and complete. Rather, in some instances, it was a matter of reducing emphasis of ditch capacity as a factor and shifting the emphasis to the growing realization that it was not the sole factor. For example, there was the statement that "The amount of water to which an appropriator is entitled may occasionally be determined by the capacity of his ditch at its smallest part." [Emphasis supplied]273 Again, "The size of the ditch is a factor in aid of the intention of the party making the appropriation of the water. It is not, however, conclusive. The true test is the amount actually used for beneficial purpose."274 In 1912, the Montana Supreme Court made some loose statements concerning appropriators' "needs" and capacities of diversion and conveyance facilities as measuring the extent of their appropriations.275 After all, one's needs might substantially exceed his present intention to make both immediate use of a certain quantity of water and a reasonably prospective increase in use. If carried out diligently, the total beneficial use-not his needs-would measure the appropriation, which obviously could not be completed without adequate diversion and conveyance capacity. In other words, capacity of physical works must necessarily be adequate to serve the contemplated beneficial use-a necessary means to that end. But extent of use of water, not ditch capacity nor possible needs, must be looked to in determining the limit and extent of the 271 Tulare In. Dist. v. Lindsay-Strathmore In. Dist., 3 Cal. (2d) 489, 547, 45 Pac. (2d) 972 (1935). In a statutory adjudication proceeding, "the capacity of the various ditches outweighed all other considerations," Fort Morgan Land & Canal Co. v. South Platte Ditch Co., 18 Colo. 1, 3, 30 Pac. 1032 (1892);Hillman v.Hardwick, 3 Idaho 255, 262, 28 Pac. 438 (1891); Caruthers v. Pemberton, 1 Mont. Ill, 117 (1869); Ophir Silver Min. Co. v. Carpenter, 6 Nev. 393, 394 (1871); Coventon v. Seufert, 23 Oreg. 548, 554, 32 Pac. 508 (1893). In White v. Todd's Valley Water Co., 8 Cal. 443, 444445 (1857), it was stated that the appropriator would be allowed a reasonable time to make corrections in the plan and grade of his ditch in order to give it the intended capacity. Compare Huffordv. Dye, 162 Cal. 147, 159, 121 Pac. 400 (1912). 212Smith v. Hawkins, 120 Cal. 86, 88, 52 Pac. 139 (1898); Woods v. Sargent, 43 Colo. 268, 271-272, 95 Pac. 932 (1908); Gotelli v. Cardelli, 26 Nev. 382, 386-387, 69 Pac. 8 (1902); Millheiser v. Long, 10 N. Mex. 99, 104, 117, 61 Pac. Ill (1900); Donnelly v. Cuhna, 61 Oreg. 72, 76, 119 Pac. 331 (\9l\);Biggs v.Miller, 147 S. W. 632, 636 (Tex. Civ. App. 1912). 273 Glaze v. Frost, 44 Oreg. 29, 32-33, 74 Pac. 336 (1903). 274 Trimble v. Hellar, 23 Cal. App. 436, 443-444, 138 Pac. 376 (1913), rehearing denied by supreme court, 1914. See Union Mill & Min. Co. v. Dangberg, 81 Fed. 73, 110 (C. C. D. Nev. \%91);Smith v. Duff, 39 Mont. 382, 388-390,102 Pac. 984 (1909). 215Bailey v. Tintinger, 45 Mont. 154, 178, 122 Pac. 575 (1912). |
