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Show DIVERSION, DISTRIBUTION, AND STORAGE WORKS 595 time of first use of the meadows.21 The supreme court held that this statute gives the meadowland owner an appropriation of the water "without any affirmative act of his own in withdrawing water from the stream."22 However, it was held in the following year that such an appropriator is not exempt from the necessity of proving his claim in the event of an adjudication. If he fails to do this, and later builds a ditch on account of diminution of the streamflow, he is not entitled to have his priority date back by relation to his meadow appropriation ahead of priorities fixed by a previous statutory decree the making and limitations of which he completely ignored 23 Development of the very considerable water law of Oregon progressed with a liberal recognition that, at least in pioneer communities, valid appropriative rights could originate in use of natural stream overflow in times of flood, priorities therefor dating from the time shown by the evidence at which honest efforts were made to use both land and water for beneficial purposes.24 In 1933, the supreme court stated that "It is now well settled that where practically no artificial works for irrigation are necessary, the requirement of a valid appropriation that there be a diversion from the natural channel is satisfied, when the appropriator accepts the gift of nature, and indicates his intention to reap the benefits of natural irrigation."25 Despite this broad statement in 1933, there was previously for years a growing consciousness of the anachronism of recognizing and protecting prior appropriative rights to the use of uncontrolled natural stream overflow while controlled methods of diversion and use were being subjected to requirements of reasonable efficiency. The continued practice of utilizing uncontrolled 21Colo. Rev. Stat. Ann. § 148-3-14 (1963), first enacted, Laws 1879, p. 106. "Humphreys Tunnel & Min. Co. v. Frank, 46 Colo. 524, 528-529, 105 Pac. 1093 (1909). In a proceeding begun for the purpose of procuring an adjudication of priorities, a claim was that ditches were constructed for the purpose of taking the place of irrigation by overflow which had become depreciated by reason of natural causes: Means v. Stow, 31 Colo. 282, 283-284, 73 Pac. 48 (1903). The appeal was dismissed on procedural grounds without discussing the validity of the statute or of the appropriation. 23Broad Run Investment Co. v. Deuel & Snyder Improvement Co., 47 Colo. 573, 577-583, 108 Pac. 755 (1910). The claimant stood by during the adjudication, while other meadow owners who had constructed ditches to replace their meadow overflow irrigation appeared and had their priorities adjudicated and decreed. He did nothing toward utilizing the meadow appropriation through a ditch until after expiration of the applicable statutory period of limitations. His claim was therefore barred by the statute. See also San Luis Valley Land & Cattle Co. v. Hazard, 114 Colo. 233, 234-235, 157 Pac. (2d) 144 (1945). 2*McCall v. Porter, 42 Oreg. 49, 55-56, 70 Pac. 820 (1902), 71 Pac. 976 (1903; In re Silvies River, 115 Oreg. 27, 66, 237 Pac. 322 (1925); Campbell v. Walker, 137 Oreg. 375, 379, 382, 2 Pac. (2d) 912 (1931);Smyth v. Jenkins, 148 Oreg. 165, 166, 168-169, 33 Pac. (2d) 1007 (1934). 2SMasterson v. Pacific Live Stock Co., 144 Oreg. 396,408, 24 Pac. (2d) 1046 (1933). |
