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Show 478 NEVADA does not proceed with reasonable diligence to perfect his appro- priation, the engineer may cancel the permit.74 In discussing the due diligence concept, the Nevada Supreme Court in an early decision observed that what is required is the ordinary effort that is usual with men engaged in like enterprises who desire a speedy accomplish- ment of their designs.75 Upon completion of the project, proof of appropriation must be submitted, and the engineer issues a certificate describing the right in detail. This certificate is recorded in the county where the water is diverted.76 (6) Judicial review.-A person aggrieved by any order or decision of the State engineer may appeal the decision within 30 days after it is issued. The statute provides that the decision of the State engi- neer is prima facie correct and the burden of proving otherwise is upon the party attacking the decision.77 (7) Rights-of-way.-A Nevada statute provides that beneficial use of water is a public use, and any person may exercise the right of eminent domain to condemn lands and other property necessary for the construction of works for the use of water.78 Once the easement is acquired, it cannot be diminished or interfered with by the owner of the servient estate, nor can the owner of the easement enlarge it without further condemnation and payment of additional compensa- tion. The owner of a ditch is required to install and maintain proper measuring devices and control structures to facilitate water distribu- tion.79 3.2 Nature and Limit of Rights a. NATURE OF RIGHT ACQUIRED An appropriate right is a usufructuary right which is acquired by the application of water to a recognized beneficial use.80 This includes the right to have the water continue to flow in the stream to the appropriator's point of diversion, and extends to the tributary sources which supply the stream.81 However, this is not ownership of the corpus of the water while it is flowing in the stream.82 The Nevada Supreme Court has ruled that a water right is realty which will be regarded and protected as other real property in the State.83 b. MEASURE OF THE RIGHT While priority in time gives the better right between water users, the right of prior appropriation is subject to certain limitations. Not only is the holder of the prior right limited to the quantity of water specified in his application-or certificate if one has been issued-but also by his beneficial use requirements. It is provided by «Nev. Rev. Stat., sec. 533.395. 75 Ophir Silver Mine Go. v. Carpenter, 4 Nev. 534 (1869). 78 Nev. Rev. Stat., sec. 533.425. "Nev. Rev. Stat., sec. 533.450. 78 Nev. Rev. Stat., sec. 533.050. 79 Thomas v. Blaisdell, 25 Nev. 223, 58 Pac. 903 (1899) ; In re Calvo, 50 Nev. 125, 253 Pac. 671 (1927). so/n re Manse Spring and Its Tributaries, 60 Nev. 280, 108 P. 2d 311 (1940). ai Rickey Land & battle Go. v. Miller & Lux, 152 Fed. 11 (CCA. 9th 1907); Tonkin v. Winzell, 27 Nev. 88, 73 Pac. 593 (1903). MProsole v. Steamboat Canal Co., 37 Nev. 154, 140 Pac. 720, 144 Pac. 744 (1914). ^Nenzel v. Rochester Silver Corp., 50 Nev. 352, 259 Pac. 632 (1927) ; Dalton v. BowJces, 8 Nev. 190 (1873). |