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begun within a reasonable time, and was prosecuted with due and reasonable diligence until their completion, then the exclusive right thus acquired by the perfected appropriation will relate back at least to the time of commencing the work, even if not to the time of giving the notice. If, however, the work was not prosecuted to completion with due and reasonable diligence, -in other words, if there was unreasonable delay in its prosecution,—the right of appropriation accrues and dates only from the time when the works were finally completed, and the diversion of the water actually began. Both branches of the 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 Osgood v. El Dorado, etc., Co., 56 Cal. 571; Maeris v. Bicknell, 7 Cal. 261; Parke v. Kilham, 8 Cal. 77; Kimball v. Gearhart, 12 Cal. 27; Ophir Silver M. Co. v. Carpenter, 4 Nev. 534; Woolman v. Garringer, 1 Mont. 535; Sieber v. Frink, 7 Colo. 148. S. c. 2 Pac. Rep. 901; Irwin v. Strait, 18 Nev. 436, 8. c. 4 Pac. Rep. 1215. Although the cases generally say that the right relates back to the time of commencing the work, there would eem to be no reason why the relation should not extend back to the time of giving the no

tice. The notice is the essential, initial step in one entire continu. ous proceeding, and the due dili. gence 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. The supreme court uses the language, “the first step was taken.'

$ 56. Effect of failure to comply with statutory

rules.

[In some of the states, the method of appropriating water on the public lands, and of securing the benefit of such appropriation, is regulated by a complete system of statutory rules. Compliance with such regulations is of course essential to the perfection of the appropriator's rights, and it is only by a due observance of them that he can acquire exclusive rights to the water such as will be recog. nized and protected by the courts. But still, as these statutes are commonly framed, the appropriator, even if he omits in some particulars to follow the course which the law lays down for him, may become invested with rights which cannot be annulled by the act of any mere intruder, but will only yield to the claim of a person who, by a strict compliance with the law on his own account, has put himself in a superior position. In California, for example, section 1415 of the Civil Code requires a person desiring to appropriate water to post a notice thereof, and section 1416

1

*[In Irwin v. Strait. 18 Nev. 436, 8. 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.]

requires work to be commenced within sixty days after the notice is posted, and to be prosecuted diligently and uninterruptedly to completion. Section 1418 provides that “by a compliance with the above rules, the claimant's right to the use of the water relates back to the time the notice was posted.” Section 1419 is as follows: "A failure to comply with such rules deprives the claimant of the right to the use of the water as against a subsequent claimant who complies therewith.” In view of these provisions, the courts have decided that if a person makes an actual appropriation of the water, and diverts it to his land and applies it to a beneficial purpose, though without complying with the statutory rules, he acquires a right to its use as against any subsequent claimant who does not show a compliance on his part with the provisions of the Code.i In other words, a failure to give the required notice, or otherwise to follow the statutory direction, will not invalidate the rights of the appropriator except as against one who makes an appropriation on his own account and does comply with the statute in respect to the notice and the commencement and prosecution of his works. And this rule holds not only as between prior and subsequent appropriators of the water, but also as between an appropriator and a subsequent pre-emption claimant of the land through which the water flows. That is, the mere acquisition of title to such land will not of itself enable the owner to defeat a claim of prior appropriation which was informally or defectively made. But to accomplish this result the owner must himself proceed, formally and regularly, to make an appropriation of the water which he desires to claim. 2

1 De Necochea v. Curtis, 80 Cal. 397. 20 Pac. Rep. 563, 22 Pac. Rep.

198; Burrows v. Burrows, 82 Cal. 564, 23 Pac. Rep. 146.

2 De Necochea v. Curtis, supra.

A somewhat similar question arose in Montana, under the provisions of an act passed in 1885,1 which enacted that persons who had theretofore acquired rights to use the water of any stream for irrigation should, within six months after the publication of the act, file, in the office of the recorder of the county in which the water right was situated, a declaration in writing stating the number of inches claimed, the purpose and place of intended use, the means of diversion, the date of appropriation, and the name of the appropriator, with a proviso that a failure to comply with these requirements should "in no wise work a forfeiture of such heretofore acquired rights, nor prevent any such claimant from establishing such rights in the courts.” In a suit to enjoin the diversion of the water of a stream, where it was shown that the plaintiff actually appropriated the water in 1880 for irrigating his land, and had continuously used it for that purpose, it was held that his right was superior to that of defendant, whose appropriation was made in 1889, although it was not until 1891 that plaintiff recorded his notice of appropriation.?]

1

Comp. St. Mont. $ 1258.
2 Salazar v. Smart, (Mont.) 30 Pac. Rep. 676.

(91)

CHAPTER V.

NATURE AND EXTENT OF THE RIGHT ACQUIRED BY

APPROPRIATION.

1. NATURE OF THE RIGHT ACQUIRED.

$ 57. Appropriator's right begins at head of his ditch.
58. Nature and extent of right depends on purpose of ap.

propriation.
59. Property in ditches and canals.
.60. Sale of ditches and water rights.
61. Same; conveyance of water rights.
62. Water rights as appurtenant to land.
63. Tenancy in common.
64. Right to natural flow of water at head of ditch.
65. What are streams subject to appropriation.
66. Definition and characteristics of a water-course.
67. Percolating and subterraneous waters.
68. Right to exclusive use of water.
69. Appropriator may change place or manner of use.
70. Remedies for interference with these rights.
71. Injuries to ditches.
72. Remedies for unlawful diversion.
73. Same; action for unlawful diversion.
74. Same; action to quiet title.
75. Equitable jurisdiction.
76. Deterioration of quality of water.

IL LIABILITY FOR DAMAGES CAUSED BY DITCHES.

$ 77. Various kinds of injuries.

78. Damages caused by breaking or overflow.
79. Proper measure of care required.
80. Injuries from intentional trespasses.
81. Damages from mode of construction or operation of

works.
82. Discharge of mining debris.
83. Effects of hydraulic mining a public nuisance.

84. Impounding dams. III. EXTENT OF THE RIGHT ACQUIRED. $ 85. Amount of water which the appropriator is entitled to

use.
86. Carrying capacity of ditch.

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