OCR Text |
Show 157 lire, and limit of the appropriative right.80 The first in time is prior in right.31 Neither the diversion of water alone nor intent alone will suffice to vest an appropriative right.82 Per- fected only by use, the right is lost by abandonment.88 Simi- larly, under provisions of many state statutes, forfeiture will follow failure to use beneficially for a specified time.8* An appropriative water right is not identified by ownership of riparian lands.35 On the contrary, its existence and relation- ship to other rights on the same stream are identified in terms of time of initiation of the right by starting the work to divert water, coupled with an intent to make beneficial use of it, and the diligence with which the appropriator prosecutes to completion his diversion works and actually applies the water to beneficial use.36 The term "appropriation of water" under the arid-region doctrine has been defined as follows: 87 The appropriation of water consists in the taking or diversion of it from some natural stream or other source of water supply, in accordance with law, with the intent to apply it to some beneficial use or purpose, and con- 80 Ide v. United States, 263 U. S. 497, 505 (1924), citing the Wyoming statute declaratory of the principle, Wto. Comp. Stat. 1910, § 724. It should also be noted that Section 8 of the 1902 Reclamation Act contains a proviso that "the right to the use of water acquired under the provisions of this act shall be appurtenant to the land irrigated and bene- ficial use shall be the basis, the measure, and the limit of the right." Act of June 17,1902, § 8,32 Stat. 388,390,43 U. S. C. 372. "Arizona v. California, 298 U. S. 558, 566 (1936) ; Arizona Copper Co. v. Qillespie, 12 Ariz. 190, 202,100 Pac. 465, 469 (1909). M Albuquerque Land & Irrigation Co. v. Gutierrez, 10 N. Mex. 177, 240, 61 Pac. 357, 361 (1900). u I Wiel, Wateb Rights in the Westeen States, §§ 566-567, pp. 603-607 (3d ed. 1911). M See, e. g., N. Mex. Stats. Ann., 1941, § 77-626, which works a forfeiture of an appropriative right to use water, except that for storage reservoirs, upon failure to exercise the right for four years, unless caused by conditions beyond control of the owner of the right. "Boquillas Land & Cattle Co. v. Curtis, 213 U. S. 339, 347 (1909). "Arizona v. California, 298 U. S. 558, 566 (1936). See also the meaning of the term "to appropriate water" as set forth in Arizona v. California, 283 U. S. 423, 459 (1931). W2 Kinney, Ibbigation and Wateb Rights, § 707, p. 1216 (2d ed. 1912). |