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lake, and the very object of his appropriation may be to conduct the water from the stream, through a ditch or canal across the intervening public lands, to the tract which he possesses as a mining claim, a farm, or a mill; or even to sell and dispose of the water, thus conducted through the canal, to other parties, who use it for like purposes on their own "claims" or tracts of land. The true "riparian rights" belonging to "riparian proprietors," by virtue of their actual ownership of lands bordering upon a stream, will be considered hereafter; they are foreign to the present dis

cussion.

§ 48. Intent to apply water to beneficial use.

In order to make a valid appropriation of waters upon the public domain, and to obtain an exclusive right to the water thereby, the fundamental doctrine is well settled that the appropriation must be made with a bona fide present design or intention of applying the water to some immediate useful or beneficial purpose, or in present bona fide contemplation of a future application of it to such a purpose, by the parties thus appropriating or claiming. The purpose may be mining, milling, manufacturing, irrigating, agricultural, horticultural, domestic, or otherwise; but there must be some such actual, positive, beneficial purpose, existing at the time, or contemplated in the future, as the object for which the water is to be utilized; otherwise no prior and exclusive right to the water can be acquired, no matter how elaborate and complete may be the physical structures by which the attempted appropriation is effected.'

1 Weaver v. Eureka Lake Co., 15 Cal. 271; Maeris v. Bicknell, 7 Cal. 261; Davis v. Gale, 32 Cal. 26; McKinney v. Smith, 21 Cal. 374; Ortman v. Dixon, 13 Cal. 33; McDonald v. Bear River, etc., Co., Id. 220; McDonald v. Askew, 29 Cal. 200;

Gibson v. Puchta, 33 Cal. 310; Dick v. Caldwell, 14 Nev. 167; Dick v. Bird, Id. 161; Cramer v. Randall, 2 Utah, 248; Munro v. Ivie, Id. 535; Woolman v. Garringer, 1 Mont. 535; Simmons v. Winters, 21 Oreg. 35, 27 Pac. Rep. 7.

Under this rule, an appropriation for mere purposes of speculation is nugatory.1 [But a canal company, diverting the waters of a natural stream to a beneficial use, becomes the proprietor thereof, and, as such, may sell and deliver it for irrigating purposes, and that right can be defeated only by a failure of application of the water to a beneficial use. Wyatt v. Larimer & Weld Irrigation Co., 1 Colo. App. 480, 29 Pac. Rep. 906.] And a diversion of water solely for the object of drainage, without any bona fide intention of its present or future use for other beneficial purposes, does not constitute a valid appropriation.2 Thus, in the first of the cases cited below, the grantors of the plaintiffs had constructed a ditch for the purpose of drainage alone, with no intention of appropriating the water to any other use, and the defendants had subsequently made a ditch leading from the same stream with the intent of using the water thus diverted for a beneficial object. The court held that the defendants, although later in time, had gained a priority of appropriation over the plaintiffs' grantors, and over all persons holding under them.

§ 49. There must be actual diversion.

3

Again, since no exclusive property is or can be acquired in the water while still remaining or flowing in its natural condition, distinct and separate from the property in the land over which it runs, it follows, as a second indispensable requisite of the appropriation under consideration, that there must be an actual diversion of the water from its natural channel or bed, by means of a ditch, canal, reservoir, or other structure. For this pur

1 Weaver v. Eureka Lake Co., 15 Cal. 271.

2 Maeris v. Bicknell, 7 Cal. 261; McKinney v. Smith, 21 Cal. 374; Thomas v. Guiraud, 6 Colo. 530.

3 Parks Canal & M. Co. v. Hoyt,

57 Cal. 44; Kidd v. Laird, 15 Cal. 162.

Dalton v. Bowker, 8 Nev. 190; Riverside Water Co. v. Gage, 89 Cal. 410, 26 Pac. Rep. 889.

pose, however, a dry ravine or gulch may be used as a part of a ditch, with the same effect as though the structure were wholly artificial; and a "flume" is in all legal respects the same as a ditch or canal.2 Not only may the appropriator use another natural ravine as a part of his ditch for conducting the water which has been diverted; he may even use a lower portion of the same natural channel from which the water was taken, for a like purpose. If, after diverting and using the water, the appropriator returns it into its original natural channel, without any intent to "recapture" it, then, as will be shown hereafter, he abandons it. But after duly diverting the water at some point, he may turn it back into the natural channel of the stream at a lower point, with the design of using a certain portion of such channel as a ditch, and of "recapturing" the water, and may then divert the same quantity originally appropriated at a point still lower down the stream.3

§ 50.

There must be actual use of water.

[One of the essential elements of a valid appropriation of water is the actual application of it to some useful industry. This must follow and consummate the intention. To acquire a right to water from the diversion thereof, one must, within a reasonable time, employ the same in the business for which the appropriation is made. What shall constitute such reasonable time is a question of fact, (as will appear more fully hereafter,) depending upon the circumstances connected with each partic

'Hoffman v. Stone, 7 Cal. 46. [Where plaintiff built a ditch upon public and unoccupied land, which conducted water to a point in a canyon, where it disappeared under ground, coming to the surface again at the mouth of the canyon, held, that he was entitled to be protected as against defendant, who

dug other ditches cutting off the supply. Keeney v. Carillo, 2 N. M. 480.]

2 Ellison v. Jackson Water Co., 12 Cal. 542.

3 Richardson v. Kier, 37 Cal. 263. Butte Canal, etc., Co. v. Vaughn, 11 Cal. 143.

§ 50 ular case.1 It has recently been ruled by the supreme court of Idaho, (Conant v. Jones, 32 Pac. Rep. 250,) that appropriators of water for irrigation purposes, after conducting water to the point of intended use, have a reasonable time in which to apply it to the use intended. They may add to the acreage of cultivated land from year to year, and make application of water thereto for irrigation as their necessities demand, or as their abilities may permit, until they have put to a beneficial use the entire amount of water at first diverted by them; provided that that amount is needed for the reasonable irrigation of the land. But a priority of right to the use of the water of a natural stream for the purpose of irrigation cannot be acquired merely by diversion of the water, but there must also be an application of the same to the soil; and priorities of rights are not to be determined from the capacities of the ditches, even though promises are made to apply all the diverted water to the soil within a reasonable time.2 And in accordance with this principle it is held that a complaint for an unlawful interference with plaintiff's water rights, which alleges priority of appropriation, but without alleging facts showing a diversion and an application to a beneficial use, states merely a legal conclusion and is demurrable. And

1 Sieber v. Frink, 7 Colo. 148, s. c. 2 Pac. Rep. 901. [In Colorado, the first appropriator of water from a natural stream for a beneficial purpose has a right to the extent of his appropriation, (subject only to the qualifications contained in the Colorado constitution,) paramount to the right acquired by a subsequent patentee of the land. This right is not dependent upon the locus of the application of the water to the beneficial use. Nothing in the statutes is susceptible of a LAW W. R.-6

construction which would vary this rule. Coffin v. Left-Hand Ditch Co., 6 Colo. 443; Thomas v. Guiraud, Id. 530.]

2 Fort Morgan Land Co. v. South Platte Ditch Co., (Colo.) 30 Pac. Rep. 1032; Combs v. Agricultural Ditch Co., (Colo.) 28 Pac. Rep. 966.

3 Farmers' High Line Canal Co. v. Southworth, 13 Colo. 111, 21 Pac. Rep. 1028. See, also, Peregoy v. McKissick, 79 Cal. 572, 21 Pac. Rep. 967.

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it is also held that an excessive diversion of water cannot be regarded as a diversion of it to a beneficial use.1

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51.

Physical acts constituting appropriation. The fundamental doctrine is well settled that, in order to constitute a valid appropriation of the kind under consideration, two distinct elements are absolutely essential,-the intent to appropriate water from a particular stream, and physical acts by which this intent is carried into effect, without abandonment, until the appropriation is completed. Either without the other is insufficient. How this intent may be signified, and what physical acts may be sufficient to carry it into operation, must depend somewhat upon the natural condition and situation of the locality, and other circumstances of the case. "In appropriating unclaimed water on the public land, only such acts are necessary, and such evidence of the appropriation required, as the nature of the case and the face of the country will admit, and are under the circumstances and at the time practicable. For example, surveys, notices, blazing of trees, followed by actual work and labor, without abandonment, will in every case, where the work is completed, give title to the water against subsequent claimants."2 It follows, therefore, that a notice alone of an intent to divert or to use the water of

1 Combs v. Agricultural Ditch Co., (Colo.) 28 Pac. Rep. 966.

2 Kimball v. Gearhart, 12 Cal. 27; Osgood v. El Dorado, etc., Co., 56 Cal. 571; Thompson v. Lee, 8 Cal. 275; Kelly v. Natoma W. Co., 6 Cal. 107: Weaver v. Eureka Lake Co., 15 Cal. 271; Davis v. Gale, 32 Cal. 26; Robinson v. Imperial Silver M. Co., 5 Nev. 44; Columbia M. Co. v. Holter, 1 Mont. 296. [The true test of appropriation is the successful application of the

water to the beneficial use; the method employed is immaterial. Thomas v. Guiraud, 6 Colo. 530. The erection of a dam across a natural water-course is an actual appropriation of the water at that point, but not below it, although the water flowing over the dam is brought back into the water-course by means of canals made by the owners of the dam. Kelly v. Natoma Water Co., 6 Cal. 105.]

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