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a specified stream will not of itself constitute an appropriation thereof;' nor, on the other hand, will the mere act of commencing or digging a ditch, even with the intent to appropriate, be sufficient of itself to give an exclusive right to the water of a stream, without some notice or publication of the intent.? “Public land is appropriated by one character of act; water, by another. The digging of a ditch on public land is not an appropriation of land sufficient for a mill-site, nor is the mere appropriation of a mill-site an appropriation of water for purposes of milling."
$ 52. Notice of intent to appropriate.
While a notice of the intent to appropriate is essential, the mode of giving it depends upon the circumstances of the case, the nature and situation of the stream, and of the adjacent country. The usual mode seems to be by posting written or printed notices on or near the margin of the stream or lake at the point where the diversion is to be made, and perhaps at other points along the projected line of the canal. No particular form of notice is prescribed. All that is required is that its terms shall be sufficient to put a reasonably prudent man upon inquiry;' and to this end its language must be liberally construed. If an appropriator, after duly posting a notice, and while prosecuting his work with diligence, posts a second notice of appropriation of the same water, he does not thereby abandon his claim under the former notice. After a notice of the intention to appropriate the water is given, the works by which the appropriation is to be effected must be actually commenced, and must then be prosecuted with reasonable diligence unto completion, in order to perfect the exclusive right to the use of the water which is obtained through a valid appropriation.
1 Thompson v. Lee, 8 Cal. 275: Robinson v. Imperial Silver M.Co., 5 Nev. 44; Columbia M. Co. v. Holter, 1 Mont, 296.
2 Kimball v. Gearhart, 12 Cal. 27. 3 Robinson v.
Imperial Silver M. Co., 5 Nev. 44.
4 See Osgood v. El Dorado, etc., Co., 56 Cal. 571.
6 Kimball v. Gearhart, 12 Cal. 27.
6 Osgood v. El Dorado, etc., Co., 56 Cal. 571, 579. (In the case of Floyd v. Boulder Flume Co., 11
Mont. 43.7, 28 Pac. Rep. 450, it was held that a notice that plaintiffs have a legal right to the use of, and that they claim, 2500 inches of the waters of Boulder and Lowland creeks for irrigating and other purposes, and that the special purpose for which the “water is to be used and the place of intended use is the fluming of wood, milling. and other useful purposes, ” and that the water is diverted from these streams by means of a ditch and flume which carry 2500 inches of water from the streams, and that the water was appropriated on a date specified, sufficiently shows by what means the waters of Boulder creek were appropri. ated, the quantity and purpose of such diversion, and the date of the appropriation thereof.]
$ 53. Reasonable diligence in completion of works.
Whether the work has been begun and prosecuted with due and reasonable diligence is a question of fact for the jury, and their verdict will, in general, be conclusive. The due and reasonable diligence in constructing the works will depend mainly upon the physical circumstances of the locality, upon the nature and condition of the region through which the ditch runs, its accessibility, the length of the season in which work is practicable, the difficulty of procuring adequate supply of labor, the extent and magnitude of the works themselves, and the like, and not upon the personal circumstances-especially the pecuniary circumstances of the parties themselves. In Ophir Silver M. Co. v. Carpenter it was held that “diligence in the prosecution of work, such as the appropriation of running water by constructing a ditch for its use, does not require unusual or extraordinary efforts, but only such constancy and steadiness of purpose or of labor as is usual with men engaged in like enterprises, who desire a speedy accomplishment of their designs, such assiduity in its prosecution as will manifest a bona fide intention to complete it within a reasonable time. In the consideration whether reasonable diligence has been exercised in the construction of a ditch necessary to the appropriation of water, requiring the outlay of much capital and the labor of many men, the illness of the appropriator and his want of pecuniary means to prosecute the work, being matters incident to the person and not to the enterprise, are not such circumstances as will excuse great delay in the work.”l In Kimball v. Gearhart the court held: “On the question of due and reasonable diligence in constructing the works, the jury may take into consideration the circumstances surrounding the parties at the date of the appropriation, such as the nature and climate of the country, and the difficulty of procuring labor and materials. When parties begin the construction of a ditch, who have not at the time the pecuniary means to complete it in a reasonable time, and they project the work and claim the water with full knowlelge of their own lack of means, they cannot rely on such want of means as an excuse for delay, or for not prosecuting the work to completion with due diligence.” In Parke v. Kilham, 8 Cal. 77, it was also held that “when A. stands by and sees B. constructing a ditch at great expense, for the purpose of appropriating certain water to his own use, and does not inform B.
1 Osgood v. El Dorado, etc., Co., 56 Cal. 571, 579.
2 Osgood v. El De do, etc., Co., 56 Cal. 571, 581; Parke v. Kilham, 8 Cal. 77; Kimball v. Gearhart. 12 Cal. 37; Weaver v. Eureka Lake
Co., 15 Cal. 271; Ophir Silver M. Co. v. Carpenter, 4 Nev. 534: Wool. man v. Garringer, 1 Mont. 535.
3 Osgood v. El Dorado, etc., Co., 56 Cal. 571, 581; Weaver v, Eureka Lake Co.. 15 Cal. 271.
4 Ophir Silver M. Co. v. Carpenter, 4 Nev. 531; Weaver v. Eureka Lake Co., 15 Cal. 271; Parke v. Kilham, 8 Cal. 77; Kimball v. Gear. hart, 1.2 Cal. 97; Osgood v. El Dorado, etc.. Co., 56 Cal. 671. See, also, Dyke v. Caldwell, (Ariz.) 18 Pac. Rep. 276.
1[In this case it was held that the doing of five or six days' work during a period of sixteen months, and only three months' labor during a period of two and a half years, in order to obtain an appro
priation of running water, was not such diligence in prosecuting the work as would give the person doing it a superior right to the use of the water. Ophir Silver M. Co. v. Carpenter, 4 Nev. 534.]
of his own prior claim to such water, A. and his vendees are thereby estopped from afterwards setting up or asserting such claim, even though it was originally the prior one.”
§ 64. When appropriation is complete.
The appropriation does not become perfect and final until the works are completed, so that the actual use of the water has begun, or, at least, so that its actual use can be commenced. Although, as will be shown hereafter, if the works are constructed with due diligence, the appropriation relates back to the date of the initial step, during the process of their construction, in the interval between their commencement and their con pletion, the appropriator acquires no vested, exclusive right to the water of the stream, and can maintain no action against other persons for their use or diversion of the water. Such right of action only arises when the works and the appropriation are completed; although, on the question of priority between the appropriator and other claimants, his appropriation then relates back to the time of his giving notice. In Nevada Co., etc., Co. v. Kidd’ these conclusions were fully established: “A court of equity will not restrain the diversion of water until the plaintiff is in a condition to use it. While the plaintiff's dam and ditch are in the process of construction, but are not yet ready to actually appropriate or use the water, the use of the water by other persons causes no injury to the plaintiff, and gives to him no cause of action for relief, either equitable or legal. When a party claiming water is constructing a dam and ditch, until he is in a position to use the water, his right to it does not exist
? (One who has by appropriation the prior right to the waters of a stream, by actually commencing and prosecuting the construction of a ditch and flume, has certainly a right to the use of so much water
as is necessary to preserve the flume from injury during construction. Weaver v. Conger, 10 Cal. 233.]
237 Cal. 282.
in such a sense as to enable him to maintain an action against another person, either to recover the water itself, or to recover damages for its diversion.” The scope and effect of this decision should not be misapprehended. The case arose from an attempted or inchoate appropriation of the water of a stream on the public domain,-an appropriation of the kind sanctioned by congress and now under consideration. Although the language in some portions of the opinion is quite general, yet it should, of course, be confined to and limited by the facts of the case before the court. The rule adopted by the court is plainly confined to appropriators of water on the public lands of the United States, under the customs and laws of the state as recognized by the congressional legislation; and it has no reference whatever to private owners who have obtained titles to lands on the banks of streams, nor to the “riparian rights” of such proprietors. The court clearly had no intention of holding that owners of lands bordering on a stream can maintain no action against other persons for an infringement of their “riparian rights," unless they have made an actual appropriation or use of the water by means of a completed dam, ditch, or other structure. Such a ruling would be in direct conflict with numerous dicta and decisions by the same court.
§ 55. Appropriation relates back to first step.
It has been shown that an appropriation does not become final and perfect until the works, by which the water is diverted so as to be actually used, are completed. When, however, the right has thus been perfected, the doctrine of relation may operate and determine the question of priority between the appropriator and other opposing claimants to the waters of the same stream. If a notice of the intention to appropriate was prop erly given, and the work of constructing the dam, ditch, reservoir, or other necessary instrumentalities of the diversion was