IRRIGATION.

Sec. 435.

EPITOME OF CASES.

Appropriation - What constitutes Abandonment. One who files a notice of appropriation of water but delays for many years to construct any ditch or make any diversion, has no rights as against one in the actual and peaceable possession and enjoyment of the water. Cardoza v. Calkins, 117 Cal. 106 (48 Pac. Rep. 1010). An appropriator of water does not enlarge his rights by merely filing a notice whereby he claims an appropriation of a certain amount of the water of the stream, where he makes no additional or other use of the water than he had made prior to the date of such notice. Smyth v. Neal, 31 Or. 105 (49 Pac. Rep. 850). A water right may be acquired in Montana by the actual diversion and appropriation of the water of a stream, without complying with the statute (Comp. Stat. 1887, div. 5, ch. 74) requiring a locator to post and file a notice of his appropriation, which will be good as against all subsequent appropriators. Murray v. Tingley, 20 Mont. 260 (50 Pac. Rep. 723). In the absence of an intention to that effect, mere nonuser of a water right does not constitute an abandonment. Sloan v. Glancy, 19 Mont. 70 (47 Pac. Rep. 331). Water rights appurtenant to the lands of a decedent are not abandoned by the failure of his administrator to use them during one irrigating season. Turner v. Cole, 31 Or. 154 (49 Pac. Rep. 971).

Sec. 436. Rights of appropriators of water-Priorities. An appropriator of a water right is entitled to such quantity as he can put to a useful purpose upon his land within a reasonable time by the use of reasonable diligence, but his right to appropriate a sufficient quantity to irrigate all his land may be lost by unreasonable delay. Senior v. Anderson, 115 Cal. 496 (47 Pac. Rep. 454). Particular facts held

insufficient to show a lack of diligence by a prior appropriator in the application of the waters taken to a useful purpose. Arnold v. Passavant, 19 Mont. 575 (49 Pac. Rep. 400). In case of conflict between appropriators of water in a given stream, that appropriation that is first in time is the first in right. Dunniway v. Lawson, Idaho (51 Pac. Rep. 1032). Citing and approving, Hillman v. Hardwick, 2 Idaho 983 (28 Pac. Rep. 438). Where a stream is fed by the waters of a spring, either through definite channels or by percolation, a prior appropriator may enjoin the owner of the spring from diverting its waters to his own use. Bruening v. Dorr, 23 Colo. 195 (47 Pac. Rep. 290; 35 L. R. A. 640). Citing, Strait v. Brown, 16 Nev. 317 (40 Am. Rep. 497). The right of one to take a certain portion of the waters of a stream is not affected by his changing the place of his diversion, where such change does not injuriously affect the rights of others. Smith v. Corbit, 116 Cal. 587 (48 Pac. Rep. 725); San Luis Water Co. v. Estrada, 117 Cal. 168 (48 Pac. Rep. 1075). The priority of the appropriation of one who has given a proper notice and constructed his ditch, is not affected by the fact that his ditch broke before the water reached the land intended to be irrigated, by reason of which one claiming an adverse appropriation was enabled to first apply the water on his land. Wells v. Kreyenhagen, 117 Cal. 329 (49 Pac. Rep. 128). The right to water by prior appropriation is limited in every case in quantity and quality by the uses for which the appropriation is made. A different use of the water subsequently does not affect the right. That is subject to the same limitations, whatever the use. The appropriation does not confer such an absolute right to the body of the water diverted that the owner can allow it, after its diversion, to run to waste, and prevent others from using it for mining or other legitimate purposes. Senior y. Anderson, 115 Cal. 496 (47 Pac. Rep. 454). The waters of a prior appropriator are fixed by the extent of his appropriation for a beneficial use, and others may subsequently appropriate any water of a stream not so used by a prior appropriator; and such latter appropriation becomes a vested right, and entitled to as much protection as the former, and a right of which he cannot be deprived except by voluntary alienation, or for

feiture by abandonment. The rights of the former being fixed, he cannot enlarge his rights to the detriment of the latter by increasing his demands, or by extending his use to other lands, even if used for a beneficial purpose. Becker v. Marble Creek Irr. Co., 15 Utah 225 (49 Pac. Rep. 892). The test of the extent of an appropriation with reference to a subsequent right to the waters of a stream is dependent upon the capacity of the first ditch before such subsequent appropriation is made. When an owner or possessor of land makes an appropriation of water in excess of the needs of the particular portion of the land upon which he conveys the water, and ' other portions of his land also require irrigation, his water right is not limited by the requirements of the particular fraction. He may still, despite the fact that another's water right has attached, construct other ditches through his remaining land, provided that the total amount of water conveyed by all the ditches on his place does not exceed the original capacity of the first ditch. As between his appropriation and the subsequent water right, the capacity of the ditch by means of which he first made his appropriation is the test of the extent of it. Mc Donald v. Lannen, 19 Mont. 78 (47 Pac. Rep. 648). For particular case determining the rights of appropriators of water, see Senior v. Anderson, 115 Cal. 496 (47 Pac. Rep. 454).

Sec. 437. Priority of right to take water for domestic use. The right of a riparian owner to use the water of a stream for irrigation, is subject to the prior right of other owners to so much of the water as is necessary for domestic purposes. Smith v. Corbit, 116 Cal. 587 (48 Pac. Rep. 725). The preference given by Colo. Const., Art. 16, § 6, for the use of water for domestic purposes, does not authorize a ditch company to divert water for domestic use from the public streams of the state by means of large canals, in violation of prior vested rights of others to use the water for other purposes. Montrose Canal Co. v. Loutsenhizer Ditch Co., 23 Colo. 233 (48 Pac. Rep. 532). The court say: "While it is true that § 6 of article 16 of the constitution recognizes a preference in those using water for domestic purposes over those using it for any other purpose, it is not intended thereby to

authorize a diversion of water for domestic use from the public streams of the state by means of large canals, as attempted in this case. The use protected by the constitution is such as the riparian owner has at common law to take water for himself, his family or his stock, and the like. And, if the term 'domestic use' is to be given a different or greater meaning than this, then, as between such enlarged use and those having prior rights for agricultural and manufacturing purposes, it is subject to that other constitutional provision, requiring just compensation to those whose rights are affected thereby. Strickler v. City of Colorado Springs, 16 Colo. 61 (26 Pac. Rep. 313; 25 Am. St. Rep. 245); Armstrong v. Larimer Co. Ditch Co., 1 Colo. App. 49 (27 Pac. Rep. 235). In the Strickler Case, this court, in construing the constitutional provision referred to, as applied to water rights antedating its adoption, said: Our conclusion, therefore, is that the constitutional provisions relied upon were not intended to affect, and do not affect, prior vested rights, but that all owners of such rights are entitled to compensation therefor before the same can be taken or injuriously affected.' We think the doctrine of that decision is equally applicable to the rights of prior appropriators for manufacturing or agricultural purposes acquired since the adoption of the constitution. To give the phrase 'domestic use' the construction contended for by appellants would result in laying waste many valuable agricultural lands, and destroying manufacturing rights to the use of water, to the end that the same may be diverted for domestic use by communities settling at points remote from the water supply, although the water could only be taken to such distant points by long irrigating canals. This would require the diversion of many times the volume of water actually required for domestic use, as by far the greater portion of it would be lost as the result of evaporation and seepage."

Sec. 438. Conveyance of water rights. Water rights pass by a conveyance of land to which they are appurtenant, Sloan v. Glancy, 19 Mont. 70 (47 Pac. Rep. 334); although the grantor is ignorant of their existence and they are not mentioned in the conveyance. Turner v. Cole, 31 Or. 154 (49 Pac. Rep. 971). Possessory rights to ditches

and to the use of water may each have an existence independent of the other. A ditch may be conveyed reserving the water right, or the water right may be conveyed reserving the ditch. Ada Co. Farmers' Irr. Co. v. Farmers' Canal Co., Idaho (51 Pac. Rep. 990; 40 L. R. A. 485). Where a conveyance of an interest in an irrigation ditch makes no mention of lateral ditches, it is not error to admit evidence to show that it is not the intention to include them. Carman. v. Staudaher, 20 Mont. 364 (51 Pac. Rep. 738). Where the owner of land on which there is a natural stream conveys a portion of the land, he impliedly grants a right to such use of water as is necessary for the reasonable enjoyment of the part granted; and where his grantee uses half of the water of such stream continuously for 19 years without objection from the grantor or his subsequent grantees of the remaining part of the land such grantee acquires a right to take and use one-half of the water of the stream. Smith v. Corbit, 116 Cal. 587 (48 Pac. Rep. 725). A verbal transfer by a settler on the public domain of his possession of the claim and the improvements passes to his transferee appurtenant water rights and the priority incident thereto. McDonald v. Lannen, 19 Mont. 78 (47 Pac. Rep. 648).

Sec. 439. Construction of statutes. Cal. Pol. Code, §§ 3116, 3481; Stat. 1878, p. 911, construed and appliedorganization of reclamation districts-dissolution-constitutionality of statute. People v. Reclamation Dist. No. 551, 117 Cal. 114 (48 Pac. Rep. 1016). California Laws 1887, ch. 34, §§ 12, 15, 22, 37, construed and applied-irrigation districts--sale of bonds-application of proceeds-power of board of directors to levy assessments. Hughson v. Crane, 115 Cal. 404 (47 Pac. Rep. 120). Cal. Act, Mar. 7, 1887 (Stat. 1887, p. 29); Stat. 1889, p. 212; Stat. 1891, p. 143, construed and applied-" Wright Act" and statutes supplementary and amendatory-validity of organization of irrigation district and issue of bonds thereby. In re Central Irr. Dist., 117 Cal. 382 (49 Pac. Rep. 354). A statute (Colo. Gen. Stat., § 1722) providing for the prorating of the waters of an irrigation ditch in the case of scarcity, will not be applied so as to interfere with existing priorities or invalidate contracts for the prorat