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Show ELEMENTS OF THE APPROPRIATIVE RIGHT 505 reference to any particular period and hence was not limited as to time.346 And the Colorado Supreme Court held that an appropriation of water for operation of mill machinery had been made for a specific quantity of the water for use whenever it was available in the stream, and that the fact that the volume of streamflow, by reason of climatic conditions, was sufficient for use during only certain parts of the year did not, of itself, limit the appropriation to such periods. The appropriation was operative whenever the flow was sufficient.347 Appropriation under permit pursuant to administrative statute.- As stated in chapter 7, under "Methods of Appropriating Water of Watercourses-Current Appropriation Procedures-Administrative," a permit granted by the State to appropriate water sets out-or may set out-restrictions including periods of annual use. This is the administrative application of the general rule as to measurement of an appropriation by time periods. The restrictions so imposed in the permit become essential features of the particular appropriation.348 In 1926, the New Mexico Supreme Court decided a case in which plaintiff had obtained a permit for the year-round use of 5 second-feet, and defendant later obtained a permit for 4¥i second-feet out of plaintiffs supply for winter use only, that is, from October 15 to March 15.349 The court noted the rule of measurement by time as well as by quantity which prevailed under the arid region doctrine of appropriation, but did not consider it well adapted to general agriculture. Despite this, the court took the position that the water appropriation statute of the State had departed from the arid region doctrine in this particular, inasmuch as the statute regulated the acquisition, means, and manner of enjoyment of water rights, which controlled the whole matter. Attention was called to the fact that the statute required an applicant to state in his application the quantity of water and period or periods of annual use of the water,350 so that now the right of the water user is measured by the State Engineer's permit or by decree of the court. 346Rodgers v. Pitt, 129 Fed. 932, 938-939 (C. C. D. Nev. 1904). 347 Telluride v. Blair, 33 Colo. 353, 355, 80 Pac. 1053 (1905). 348 Note that the South Dakota statute provides that the allowance of water for irrigation shall not exceed 1 second-foot per 70 acres, or the equivalent thereof, and the volume of diverted water is limited to 3 acre-feet per acre, delivered on the land "for a specified time each year," S. Dak. Comp. Laws Ann. § 46-5-6 (1967). In Oklahoma, the amount of water to be diverted for irrigation shall be no more than 4 acre-feet at the point of diversion for each acre of irrigated land "each calendar year." Okla. Stat. Ann. tit. 82, § 33 (1970). 3A9Harkey v. Smith, 31 N. Mex. 521, 523-529, 247 Pac. 550 (1926). Defendant's claim was based on plaintiffs nonuse during the winter months, resulting in forfeiture, which the supreme court rejected as inapplicable to the facts herein. Plaintiff had the right to use the 5 second-feet at any time of the year in accordance with his necessities. Defendant could acquire no primary right to use his claimed 4Vi second-feet in the year, for his claim was subservient to that of plaintiff and could be exercised only after plaintiff's needs had been supplied. 350N. Mex. Stat. Ann. § 75-5-1 (1968). |
