rule are concisely and clearly stated in the case of Ophir Silver M. Co. v. Carpenter: "In the appropriation of running water for the purpose of acquiring a right thereto, if any work is necessary to be done to complete the appropriation, the law gives a reasonable time within which to do such work; and protects the rights during such time by relation to the time when the first step was taken. Where the work necessary to complete an appropriation of running water is not prosecuted with diligence, the right to the use of the water does not relate back to the time when the first step was taken to secure it, but dates from the time when the work is completed or the appropriation is fully perfected." What constitutes due diligence in constructing the works was discussed under the preceding head. This doctrine of relation is practically important in determining the priority of the appropriation as against subsequent appropriators and claimants. of water from the same stream, and as against subsequent grantees or purchasers of lands on its banks.1 Rep. 901; Irwin v. Strait, 18 Nev. 436, s. c. 4 Pac. Rep. 1215. Although the cases generally say that the right relates back to the time of commencing the work, there would seem to be no reason why the relation should not extend back to the time of giving the notice. The notice is the essential, initial step in one entire continuous proceeding, and the due diligence must be used from the date of giving the notice. Is it possible that the rights of another claimant could intervene between the date of the first appropriator's notice and the time when his work is actually begun, no matter how short the interval? Yet this result must be possible if the right of appropri ation relates back only to the time of actually beginning the work. 1 [In Irwin v. Strait, 18 Nev. 436, s. c. 4 Pac. Rep. 1215, it is said: "In determining the question of the time when a right to water by appropriation commences, the law does not restrict the appropriator to the date of his use of the water; but, applying the doctrine of relation, fixes it as of the time when he begins the dam or ditch or flume, or other appliance by means of which the appropriation is effected, provided the enterprise is prosecuted with reasonable diligence. This language would seem to exclude the theory that the doctrine of relation would carry the appropriation back to the time of giving notice.] CHAPTER V. NATURE AND EXTENT OF THE RIGHT ACQUIRED BY APPROPRIATION. I. NATURE OF THE RIGHT ACQUIRED. 55. Appropriator's right begins at head of his ditch. 56. Nature and extent of right depends on purpose of appro 60. Right to natural flow of water at head of ditch. 61. What are streams subject to appropriation. 62. Definition and characteristics of a water-course. 63. Percolating and subterraneous waters. 64. Right to exclusive use of water. 65. Appropriator may change place or manner of use. 67. Injuries to ditches. 68. Remedies for unlawful diversion. 69. Equitable jurisdiction. 70. Deterioration of quality of water. II. LIABILITY FOR DAMAGES CAUSED BY DITCHES. 71. Various kinds of injuries. 72. Damages caused by breaking or overflow. 73. Proper measure of care required. 74. Injuries from intentional trespasses. 75. Damages from mode of construction or operation of works. 76. Discharge of mining debris. 77. Effects of hydraulic mining a public nuisance. 78. Impounding dams. III. EXTENT OF THE RIGHT ACQUIRED. 79. Amount of water which the appropriator is entitled to use. 80. Carrying capacity of ditch. 81. True capacity of ditch the proper measure. IV. SUCCESSIVE APPROPRIATORS. § 82. Rights of subsequent appropriator. 83. Successive appropriations. IV. SUCCESSIVE APPROPRIATORS-Continued. 84. Periodical appropriations. 85. Conditions under which subsequent appropriation may be effected. 88. General doctrine of abandonment. 89. Methods of abandonment. 90. Abandonment by adverse user. VI. REVIEW OF THE SYSTEM. 91. This system as a whole. 92. Defects of the system. 93. Presumption that stream was on public land. I. NATURE OF THE RIGHT ACQUIRED. § 55. Appropriator's right begins at head of his ditch. The doctrine is settled by repeated decisions that an appropriator who has constructed a ditch, and is thereby diverting the water of a stream, or any portion of it, for some beneficial purpose, obtains and has no property whatever in the water of such stream while it is flowing in its natural channel or bed, and before it reaches the "head" or commencement of the ditch where the diversion begins. It has even been questioned whether his right to the water after diversion, and while flowing through the ditch, is really a "property," or only an exclusive right of use; but it is settled beyond all question that he has no property in the water of a natural stream, flowing in its natural current and channel, before the diversion into his ditch or other structure takes place. He can maintain no actions based upon such property. In fact, private property in the running waters of a natural stream, flowing in its natural channel, cannot be acquired, separate and distinct from a property in the land. through and over which the stream runs.1 In Parks Canal & M. Co. v. Hoyt it was held that the water flowing in the stream above the head of the appropriator's ditch is realty, a part of the land, and does not become in any sense his property until it passes into his control in his ditch or other works. He cannot, therefore, maintain an action upon an implied contract, as for the price of personal property sold, against a person who has wrongfully diverted the water from the stream above the head. of his ditch. His legal remedy for such an injury is by an action on the case to recover damages for the tort. In Los Angeles v. Baldwin,' although it appeared that the city had, by prescription or otherwise, acquired the right to appropriate and use the entire water of the Los Angeles river, yet it was held that the city did not own the corpus of the water while flowing in the river. In Kidd v. Laird' the general doctrine was laid down that running water, while flowing in its natural manner in the natural channel of a stream, cannot be made the subject of private ownership. A right may be acquired to the use of the water in such a condition, which will be protected as though it were a right of property; but this right is not a special property in the water itself,—in the corpus of the flowing water. § 56. Nature and extent of right depends on purpose of appropriation. The nature and extent of the right acquired in the water after its diversion, while under the control of the appropriator, in his ditch, canal, reservoir, or other structure, must depend, I think, upon the purpose for which the appropriation is made. 'Lower Kings River W. Co. v. Kings River, etc., Co., 60 Cal. 408; Parks Canal & M. Co. v. Hoyt, 57 Cal. 44; City of Los Angeles v. Baldwin, 53 Cal. 469; Nevada Co., etc., Co. v. Kidd, 37 Cal. 282; Mc Donald v. Askew, 29 Cal. 200; Kidd Where the appropriation is made for purpose of irrigation, or agriculture, or municipal uses, or mining, or for sale to others. to be used by them in any of these modes, where the use wholly or largely consists in the consumption, it would seem that the appropriator acquired a higher right, a right more nearly equivalent to absolute property or ownership, than in cases where the appropriation is made simply for the purpose of milling, or of propelling machinery of any kind. In the latter case the use is not a consumption, and the water may be returned to its natural channel, after the use, without substantial diminution in quantity. Decisions concerning milling do not, therefore, in my opinion, furnish a necessary rule for other kinds and purposes of appropriation. In Ortman v. Dixon1 the court said, concerning one who had appropriated water for a mill: "Whether A., by erecting a mill and dam, becomes entitled to the water in specie, or whether he is entitled to anything more than the use of the water as a motive power; whether there may not be an appropriation of the mere use, as well as an appropriation of the water itself, the corpus of the water, for sale,—are questions which need not be and are not now decided." In the later case of McDonald v. Askew2 the court laid down a more definite rule on this particular matter: "One who locates on a stream, and appropriates the water for a mill or other machinery, does not obtain a property in the water as such, but only a right to the momentum of its fall at that place, and to the flow of the water in its natural channel." § 57. Property in ditches and canals. There is, of course, a plain distinction between the appropriator's right to the water which he diverts, and his right to the canal, ditch, reservoir, or other structure through which the 113 Cal. 33. 229 Cal. 200. |
