| OCR Text |
Show 592 EXERCISE OF THE APPROPRIATIVE RIGHT any other method."9 And in 1960, the Colorado Supreme Court quoted with approval a statement that it had made in the opinion in a case decided in 1883 that: " 'The true test of appropriation of water is the successful application thereof to the beneficial use designed; and the method of diverting or carrying the same, or making such appropriation, is immaterial.' "10 The right to continuance of one's reasonable means of diversion is discussed in chapter 13. Use of Stream flow Without Conduit Dipping or drinking from stream. -In Nevada and Colorado, it has been held that under some circumstances appropriative rights may be founded on practices of dipping or drinking from streams. The Utah Supreme Court recognizes this as a public privilege, subject to rights of prior appropriation to the use of the streamfiow, but rejects it as the basis of an appropriative right. Thus, the Nevada Supreme Court observed that the method of taking water from streams by the use of dams, ditches, or other artificial structures was the natural thing to do. However, it would not necessarily follow that a diversion by artificial means was necessary to constitute an appropriation where the water could be put to a beneficial use without such diversion, where there was a practice of doing so, at less cost so far as the use of water was a factor, that had developed into a well-established custom. Hence, the controlling reason for requiring an artificial diversion to establish an appropriative right did not apply to an appropriation for watering livestock in natural watering places formed by natural depressions, such appropriation having been made prior to enactment of any statute specifying the manner of appropriating water.11 As stated in chapter 8 under "Elements of the Appropriative Right-Purpose of Use of Water-Stockwatering," a Nevada statute, enacted in 1925, supplements the general water rights statute by prescribing certain conditions with respect to the acquisition of rights for the watering of livestock, particularly range livestock. It states the circumstances under which new appropriations may be made in conformity with the stated policy of protecting the grazing use of the portion of the public range already fully utilized by holders of stockwatering rights. A sufficient measure of the quantity of water for this kind of an appropriation is to specify the number and kind of animals to be watered. The legislation relates to the "right to water range livestock at a particular place" and to "the watering place"-obviously contemplating use of 'Miller & Lux v. Rickey, 127 Fed. 573, 584 (C.C.D. Nev. 1904). "The right to use the water is the essence of appropriation; the means by which it is done are incidental." Offield v. Ish, 21 Wash. 277, 281, 57 Pac. 809 (1899). 10Genoa v. Westfall, 141 Colo. 533, 349 Pac. (2d) 370, 378 (1960), quoting from Thomas v. Guiraud, 6 Colo. 530, 533 (1883). "Steptoe Live Stock Co. v. Gulley, 53 Nev. 163, 171-173, 295 Pac. 772 (1931). Note that the circumstances of this case related peculiarly to the livestock industry. |
