| OCR Text |
Show 108 ARIZONA decision characterized a stream as a watercourse having a source and terminus, banks, and channel through which water flows, at least periodically. Streams are usually formed by surface waters gather- ing in a channel at which time the surface water loses its character as surface water and becomes stream water.31 Flood waters are dis- tinguished from surface waters in that flood waters have broken away from the streams and spread over the surrounding land, while surface waters have not yet become a part of a watercourse.32 3.1 Method of Acquiring Rights A. EARLY PROCEDURE Prior to 1919, when the general State water code was enacted, a water right could be acquired by either of two methods. One method was simply by diverting the water and applying it to a ben- eficial use, with the right becoming vested at the time the appropria- tion was complete. The other method of appropriation was by posting and recording a notice and, within a reasonable time, construct- ing the works and placing the water to beneficial use. The only practical difference between the two methods was in the priority of the right. If the user who posted notice proceeded with reasonable diligence to complete his appropriation, the priority of the right re- lated back to the date of the posting of the notice, while the priority of the user who simply constructed works and used the water dated from the time the appropriation was completed.33 B. CURRENT PROCEDURE {1) Exclusiveness of procedure.-In 1919, the Arizona Legisla- ture enacted a rather comprehensive water code governing the appropriation of surface water. This act required the filing of an application to appropriate with the State land department in order to obtain a right, and this procedure is exclusive.34 Water may be appropriated for any recognized beneficial use and may be appro- priated for delivery to others as well as for use by the applicant.35 The department is authorized to approve applications for use in other states.36 (2) Criteria for approval.-An application made in proper form for the appropriation of water to beneficial use shall be approved, except when a proposed application conflicts with vested rights, is a menace to public safety, or is against the interests and welfare of the public, in which event the application shall be rejected. Also, an ap- plication may be approved for less water than applied for, but shall not be approved for more water than can be put to beneficial use. Applications for municipal use shall be approved to the exclusion » Southern Pac. Co. v. Proebstel, 61 Ariz. 412, 150 P. 2d 81 (1944) ; also, see Diedrich v. Farnaworth, 3 Ariz. App. 264, 413 P. 2d 774 (1966). '2 Maricopa County Municipal Water Conservation Dist. No. 1 v. "Warlord, 69 Ariz. 1, 206 P. 2d 116S (1949). » Parker v. Mclntyre, 47 Ariz. 484, 56 P. 2d 1337 (1936) ; England v. Ally Ong Hing, 105 Ariz. 65, 459 P. 2d 498 (1969). 84 Ariz. Rev. Stat. sees. 45-101, 142. 35 Ariz. Rev. Stat. sec. 45-141. 86 Ariz. Rev. Stat. sec. 45-153. |
