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Show ELEMENTS OF THE APPROPRIATIVE RIGHT 515 It is a matter of common knowledge in the several judicial districts of this state where irrigation has been practiced since the early days that extravagant quantities of water were awarded the litigants by the courts. In instances more water was awarded than some of the ditches of the litigants ever would carry; in others much greater quantities of water than the litigants ever did or could use beneficially. In some cases the courts were not to blame. The litigants tried to get all they could. They even stipulated to the use of quantities of water ridiculously large for the amount of land indicated. * * * A fundamental error into which the early day courts fell was the result of their failure to appreciate what has been termed the duty of water; that is, the extent to which and the manner in which the water should be used by the appropriator. In determining the duty of water the court should ascertain the quantity which is essential to irrigate economically but successfully the tract of land to be irrigated. * * * With respect to material and expensive changes in practice, "Decrees fixing the extent of rights follow rather than lead in such improvements in practice."391 Although this comment was made with respect to conditions that existed in the first one-third of the present century as well as earlier, it undoubtedly reflects also the situation that existed in the very early years of irrigation development when so little unbiased information as to water requirements for crops was available. Furthermore, appropriators were gener- ally protected, not only in quantities of water appropriated, but in means of diversion if reasonable. At an address in Reno, Nevada, in 1953, an official of the Bureau of Reclamation elaborated on what he termed the practice of "padding and pyramiding" State water rights and its adverse effect on planning water use projects in the mountain States. By "padding" he meant creating records of rights to the use of water in excess of that actually beneficially used. By "pyramiding" he referred to filing and maintaining in good standing more applications to appropriate water than are required for a given purpose. "It is my opinion," he said, "based upon more than 30 years of reclamation work, that this practice is one of the most serious problems we are encountering in developing western water resources. The seriousness increases as the water available for appropriation diminishes."392 Point of Diversion of Water The necessity of a diversion of water under an appropriative right is discussed in chapter 9. The place of diversion of the water is an element of the 391 Harding, S.T., "Water Rights for Irrigation," p. 38 (1936). 392 Larson, E.O., "Planning of Water Use Projects under Federal and State Law." 22 Proc. National Reclamation Assn. 100 (1953). |
