The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1896-01-27

let II run to waste. If they failed to
| appropriate 1t, any stranger could ap-
propriate it. - Thus it seems
that although bitches are dug and
elaborate water works are con-
structed. and the water is actually con-
Quoted through the same, yet if such
water is not put to a beneficial use,
! but is permitted to run to waste, there
can be no valid appropriation. 1t has
been said by a very high court that
the true test of appropriation is the
successful application of the water to
the beneficial use: the method employ
ed is immaterial:" In other words, the
water must be applied to some useful
or beneficial industry in order to carry
out or conSummate the bona fide intent
of the appropriation.
The application of the water to the
intended beneficial use or business may
be made within a reasonable time. But
just what legth of time will be consid-
cred reasonable is always a question of
/ fact, and not of law. Therefore no uni
form rule can be laid down in this
regard. for the question will always
depend upon the facts and circum-
stances surrounding each particular
case. In determining whether or not
the person has applied the water to
| the intended use within a reasonable
length of time, the jury will always
take into consideration the physical
features of the country. such as; the
mildness or severity of the climate
and the condition of the land whether
covered with brush or not. The readi-
ness or difficulty IN obtaining workmen
and materials should also be consid-
cred. 1t is generally said that the
want or lack of pecuniary means, or
the Ill health of the appropriation can
not be shown for the purpose of justi-
Tying his delay or hardness in the an
phcatlon of the water. The reason
gwen for the rule is that such deficien-
cleS or hardShipS relate to the anpro-
priator himself and are connected with
the enterprise itself. Each appropri-
ator mas a reasonable time after get
ting the water to the place of intended
use, to put his land under cultiya tion
and thereby render it fit for the annIi-
cation. He will be entitled. however
10 such water from year to year. as he
puts 10 a beneficial use. It was said
very recently by the supreme court of
Iddho that "a person NAV add from
year to year acreage to his cu1ftvatad
lahd' and Increase his application of
water thereto for irrigation, as his nee
ISSUES may demand, as his abilities
may permit, until he has put TO
benehcial use the entire amounts Of
water at first diverted by him and con-
quoted 10 The point of intend
cd use. And the judge, in
one case from which the foregoing
extract was taken, spoke in very sfrone,
terms of the fact that the public Iands
Oh Idaho had. as a rule. been seftIed
by poor men, and that they are able n
clear only small portion of their ia,,d
each year from sage brush. and consa-
quently it would take years to clear
me entire farm. and apply the water
thereto, and that therefore a decision
WHIch would defeat persons acting in
good faith and with reasonable dill
gence from securing the full benefit
OF the water appropriated would be
very unjust and inequitable. From
what was said, it may be safe to infer
that in Idaho the question of finances
of the appropriation has something to
do with the reasonable length of time
allowed him in which to make the
application of the water. It must NOT
be forgotten, however. that the law
requires the appropriation to use rea-
sonable diligence in getting his land
under cultivation so that he can appIv
the water to the intended use +
would be well for appropriations to use
such diligence and to act with such
good faith that no question as to the
validity Of their rights could possibly
arise
the intent to appropriate. and that
certain physical acts must follow by
which the intent is carried into effect.
IN order to constitute a valid appro-
prlaton. The question arises, how
may this intent be manifested? Post
ing notices is the best and most usual
way of showing the intent, and is gen
orally the first step taken by the ap-
proprietor. The notice need not be in
particular form, but must fmpart
such things as would put reasonably !
prudent man upon inquiry The pru-
dence meant is that which the man
of average segacity and forethought |
would exercise under the particular
All that the law re-
quires is that the notice must be such |
that man of average prudence seeing |
it would ino-lire into the true nature |
OF the rights acquired or sought to be |
acquired under it, and then if he in |
vadeS the rights of the one who posted |
the notice he does it with his ewes !
open and must abide the consequences !
of his own negligence. The notice |
ought to show at least the following !
facts: 1-Bv what means the water |
is to be appropriated: 2-the quantity !
of water to be diverted: 3-the purpose |
of the diversion: 1.-THE date of the |
and 5-the name |
and address of the appropriator
This notice may be either a printed or
written one and should be posted on the |
margin of the stream or lake at the |
point OF diversion, and, no dubt as a mat
ter of precaution. at other points along
the line marked out for the ditch or
canal VI
1t must always be borne in mind that
that notice of intention to appropriate
the waters OF stream or lake is NOT
sufficient to constitute valid appropria-
ton Of the same. But the intent must be
Followed by actual work and labor upon
the canal. without abandonment mill
the same is completed As was said nv
a learned California judge: THE title
to the water does not arise, as we have
minated before, from the manifestation
fectrai prosecution of that purpose
There is but one other point to he
spoken of and that is, when is the an