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Show 584 THE APPROPRIATIVE RIGHT Thus, one who has undertaken to appropriate water but who has not completed his appropriation does not have a water right in the full sense of the term, but he nevertheless has a substantial right. This phase of the appropriative right to the use of water came to judicial attention in the early development of the appropriation doctrine in California. The supreme court held that one who initiates an appropriation has a "preliminary, inchoate right to acquire in the future a right to water," but that before an appropriation is completed, "The right to the water does not yet exist, and it may never vest. The most that is in esse, is, aright to acquire, by reasonable diligence, a future right to the water.* * * "714 Sixty years later, in a case arising in Montana, a Federal court stated: "True, this inchoate right may not be defeated by an intervening appropriation so long as the holder thereof, after the construction of his diversion works, exercises due diligence in making such application of the water; but it still remains true that to perfect the right, actual use is indispensable."715 Inchoate rights on the public domain were subjected to an important qualification. Referring to decisions rendered by the United States Supreme Court, the Supreme Court of California stated that "until the completion of the work no title, legal or equitable, vests in the appropriator, no right vests which the government of the United States is compelled to recognize." There- fore, one who initiates such an appropriation of water on the public domain acquires a possessory right to continue with diligence the prosecution of the work to completion as against "all the world but the United States."716 Property Nature of the Inchoate Right The courts of California and Idaho differ in their views as to the property nature of an inchoate right. The California Supreme Court held that upon com- pletion of an appropriation prior to enactment of the Civil Code in 1872, by diligent construction, diversion, and application of the water to a useful purpose, the appropriator's title would become complete and perfect, but that in the meantime he had "an existing conditional right, manifested by actual visible possession of the works. It would be clearly a property right, and it being incidental and appurtenant to land, it was real property." It was also held that an incomplete appropriative right initiated pursuant to the Civil Code by ^Nevada County & Sacramento Canal Co. v. Kidd, 37 Cal. 282, 311, 313, 316 (1869), quoted with approval in Mitchell v. Amador Canal & Min. Co., 75 Cal. 464, 482-483, 17 Pac. 246 (1888), in which it was also said that: ''The mere act of commencing a ditch, with the intention of appropriating the water, of itself gives no right to the water of a stream. The right depends upon the effectual prosecution of the work." llsOscarson v. Norton, 39 Fed. (2d) 610, 613 (9th Cir. 1930). 716Silver Lake Power & Irr. Co. v. Los Angeles, 176 Cal. 96, 101-102, 167 Pac. 697 (1917). See also United States v. Rickey Land & Cattle Co., 164 Fed. 496, 499 (N. D. Cal. 1908). |
