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Show 164 THE PUEBLO WATER RIGHT reasonable diligence within a reasonable time by actual application of all the water to the use designed or to some other useful purpose. He asked if 100 years is a reasonable time for actual application of all the water of the Gallinas River. And he concluded on this branch of the case that "The theory of pueblo rights, as construed by the majority here and by the California courts, is as antithetical to the doctrine of prior appropriation as day is to night." w It is true that under each of these doctrines there is a date of priority based on the time of vesting of the right and, when the water is actually put to use, there is the necessity for using it beneficially and without unnecessary waste. However, with respect to the methods of acquiring the water rights and of exercising them, there are important differences that were disregarded in the majority opinion. Certain of these differences will be noted with respect to American municipalities. Statutes of most Western States authorize appropriation of unappropriated water by individuals, unincorporated groups, corporations, municipalities, and governmental entities and agencies pursuant to prescribed procedures under which protection of vested rights is afforded. (See, in chapter 7, "Who May Appropriate Water.") On the other hand, the pueblo right of an American municipality that succeeded a Spanish or Mexican pueblo-pertaining to all the water of a stream that flowed by or through the original pueblo-may be adjudicated to the city by a court decree a century after the pueblo was established, regardless of the use of all the streamflow by upstream appropriators throughout most of the century and none whatsoever within the pueblo or city limits. The only vested water right is the city's pueblo right. The most that the prior appropriators have is priorities, as among themselves, to use of the water until the city demands the uncompensated surrender of part or all of such water, to be allowed to flow downstream to the city limits. The doctrine of relation is an important facet of the appropriation doctrine. It affords protection to one who appropriates water for a large project which, even with the use of reasonable diligence, requires several years for completion, as against another appropriator who initiates his right after commencement of the earlier one but who completes his project before the senior right is compieted. The earlier right is contingent until its completion, but its priority (if reasonable diligence prevails throughout) thereupon relates back to the date of initiation of the right and renders it vested and senior to the later appropriation. (See, in chapter 7, "Methods of Appropriating Water of Watercourses-Completion of Appropriation-Doctrine of Relation.") Radi- cally different from this is the principle of relation back as applied to the pueblo right of an American city. Even though neither the pueblo nor the city ever exercised the right, it relates back by court decree to the time of establishment of the pueblo and thus supersedes all appropriative and all M66N. Mex. at 110. |