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Show ELEMENTS OF THE APPROPRIATIVE RIGHT 493 completed appropriation. Two years after deciding the cited case, the Montana court took a more rational approach in stating that: "The tendency of recent decisions of the courts in the arid states is to disregard entirely the ca- pacity of the ditch and regard the actual beneficial use, installed within a reasonable time after the appropriation has been made, as the test of the extent of the right."276 Statutes of both Nevada and Texas specifically reject carrying capacity of one's ditch as a measure of his appropriative water right.277 In the permit appropriation States, an application to appropriate water sets out details of physical works. If the applicant is to perfect an appropriation of water for his intended project, his ditch necessarily must be adequate to convey the water to his land. But after making his final proof of appropriation, it is the quantity of water shown therein to have been put to beneficial use on the acreage involved, not exceeding the quantity authorized in the permit, that goes into his license or certificate of appropriation. In this formal and controlled appropriative process, ditch capacity was a necessary element in getting the permittee's authorized quantity of water to his land. It did not become an element of his State-certified appropriative right. Beneficial Use of Water1191 Earlier, under "Property Characteristics," there is a discussion of the appropriative right as a right of beneficial use of water. In the instant discussion of elements of the appropriative right the subject is approached, with as little duplication as practicable, from the standpoint of beneficial use as a measure of the extent of an appropriative right.279 Questions of beneficial use of water are also involved in some of the discussions of restrictions and preferences in appropriation of water in the last part of chapter 7. ™Conrow v. Huffine, 48 Mont. 437, 444, 138 Pac. 1094 (1914). See Haight v. Costanich, 184 Cal. 426, 431, 194 Pac. 26 (1920). 277Nev. Rev.Stat. § 533.060 (Supp. 1967); Tex. Rev. Civ. Stat. Ann. art. 7543 (1954). 278 See Trelease, Frank J., "The Concept of Reasonable Beneficial Use in the Law of Surface Streams," 12 Wyo. Law Journal 1 (1957). The subject of this article is a speech given by Professor Trelease to the Committee on the Economics of Water Resources Development of the Western Agricultural Economics Research Council and Western Regional Research Committee W-42, Rept. No. 5, at 7, Berkeley, California, December 20-21,1956. 279 For some other statements, see Kernan v. Andrus, 6 Alaska 54, 59-60 (1918); Santa Cruz Res. Co. v. Rameriz, 16 Ariz. 64, 68, 70, 141 Pac. 120 (1914); Wheldon Valley Ditch Co. v. Farmers Pawnee Canal Co., 51 Colo. 545, 549-550, 119 Pac. 1056 (1911); Lee v. Hanford, 21 Idaho 327, 331, 332, 121 Pac. 558 (1912); Ortel v. Stone, 119 Wash. 500, 503, 205 Pac. 1055 (.1922); State v. Laramie Rivers Co., 59 Wyo. 9, 39, 136 Pac. (2d) 487 (1943); Miller & Lux v. Rickey, 127 Fed. 573, 584 (C. C. D. Nev. 1904). |