The Wallace miner. [volume] (Wallace, Idaho) 1907-current, 1919-11-20

the right of way for the ditch through
which the water Is diverted, il does
not carry a right to the land itself.
But mere appropriation will not OPP
crate TO vest rights in each and every
instance. Ii is effective only when
Cd nc riparian rights have interview
cd and CD no prior rights are invad-
ed. This is to say, If the access to
the water is in the hands of a riparian
owner at the time the Appropriation
is made, such appropriation will not
vest any rights in the appropriation.
and the same is true If such appro-
priation invades prior rights reposing
in other individuals. In other words,
appropriation itself is subjected to
the rules of priority, and the first to
exercise the right is the one to whom
extended by the law.
1t has been held that where an
owner is entitled to divert water for
his own use he may do so in any
'fs'HiiS vi ma 'll'lSt llt DOIIl u
diversion, provided the rights of 9TH
ers are not injuriously affected. In
Colorado and Nevada it has been held
that the right of appropriation relates
to the time when the first step is TAX
en- to secure it. and that a reasonable
time will be allowed to do the neees-
sary work.
Rules of Priority.
This is a point of great Importance
to mine operators. If action is not
taken within a reasonable time to do
the necessary work, the right relates
to the time of completion and not to
the beginning of it. 1t is at once APP
parent that rights may be lost en-
tirely by the intervening appropria-
ton of another, If the work is not
pursued diligently and completed
a reasonable time. The Cali
fornia court has said that possession
and acts of ownership are conclusive
evidence of the right to use water on
the part of the appropriation. The
to use water may also be ac-
luired under the rule of adverse pos
session by continued, uninterrupted
md adverse possession or enjoyment
1f the water during the period limited
under the statute of limitations for
upon the land.
In general, it may be said that the
usual rules of priority apply in the
1ase of appropriation Of water. The
appropriation who was first in point of
line has a suerior right over all 9TH
But the right acquired does not
AXtend to an exclusive right, except
lnder peculiar circumstances.
The rule is we'll recognized that the
prior appropriation is entitled to water
the extent to which it was appro-
to the exclusion of n sub
appropriation for the same or
my other use. This means that the
appropriation acquires no greater right
'y reason of his priority, than he ex-
nrcised before subsequent appropriate
'rs came in. He can not use half the
of water and then decide to
Use it all after another appropriation
to use some of the water. The
lights acquired under appropriation
are held to be as perfect and absolute
rs If they We're acquired by prescrip-
ion or by an express grant from a ri
)arian owner. The extent of the APP
and practically all cues
ions arising under it have been held
% be questions of fact to he deter
mined solely by the decision of a
hurry, after all the evidence has been
presented.
These principles form the settled
as applied to the n in
rights may be acquired for the
Use of water. They in no way apply
o or affect instances where the land
$ already in the hands of individual
,wners, in which case the right to use
; a matter of contract or of purchase