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Show INCHOATE APPROPRIATIVE RIGHT 215 describe the plaintiffs contingent right to use the water and enjoin adverse claims or uses injurious thereto."132 Intervening appropriations under the Civil Code were superior to uncom- pleted nonstatutory appropriations.133 The inchoate Civil Code appropriative right was protected, pending the time it ripened into a completed appropria- tion by following the statutory procedure, not only as against rights subsequently initiated under the Civil Code, but also as against any portion of a nonstatutory appropriation that had not been consummated at the time of posting the Civil Code notice.134 (2) In Idaho, the permittee, even though he has not yet received a license, is entitled upon substantial compliance with the terms of his permit to enjoin others from interfering unlawfully with his use of the water and from thereby preventing him from ripening his incipient interest into a complete appropria- tion. In this respect, said the Idaho Supreme Court, his right, though only a consent to construct works and acquire real property, partakes of the nature of a vested right.13S (3) In Montana, an inchoate right is entitled to protection as long as it is kept in good standing. A Federal court said,136 "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." 132Merritt v. Los Angeles, 162 Cal. 47, 50-51, 120 Pac. 1064 (1912). But note the contrary view expressed 10 years earlier by a Federal disctrict court in Rincon Water & Power Co. v. Anaheim Union Water Co., 115 Fed. 543, 547-548 (S.D. Cal. 1902). l33Hdightv. Costanich, 184 Cal. 426, 432-433, 194 Pac. 26 (1920). 134 After enactment of the California Water Commission Act, now codified in the Water Code, questions arose as to protection of applicants for permits to appropriate water both as against other claimants and as against the State. Dicta in East Bay Municipal Util. Dist. v. State Dept. of Pub. Works, 1 Cal. (2d) 476, 480-481, 35 Pac. (2d) 1027 (1934), suggest that in certain circumstances an applicant for a permit may acquire an inchoate right sufficient to authorize him to institute a court action to determine conflicting claims between himself and other claimants, but that this may present different considerations from the question of the applicant's rights as against the State. The court cited and discussed Yuba River Power Co. v. Nevada In. Dist., 207 Cal. 521, 522-528, 279 Pac. 128 (1929). The Yuba case also is cited and discussed in Madera In. Dist. v. All Persons, 47 Cal. (2d) 681, 306 Pac. (2d) 886, 891 (1957), reversed on other grounds in Ivanhoe In. Dist. v.McCracken, 357 U.S. 275 (1958), andIvanhoe In. Dist. v. All Parties & Persons, 53 Cal. (2d) 692, 350 Pac. (2d) 69, 94 (1960). See also County ofTuolumne v. State Bd. of Equalization, 206 Cal. App. (2d) 352, 24 Cal. Rptr. 113, 119 (1962). 13SLambrix v. Frazier, 31 Idaho 382, 385, 171 Pac. 1134 (1918). Compare Griffiths v. Cole, 264 Fed, 369, 372-373 (D. Idaho 1919), in which the Federal court expressed its belief that a suit could not be maintained for the purpose of adjudicating the rights of water as between two parties who had inchoate rights only. 136Oscarson v. Norton, 39 Fed. (2d) 610, 613 (9th Cir. 1930). |