use of the water which is obtained through a valid appropriation.1

§ 52. 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.3 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 pe

1Osgood v. El Dorado, 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; Woolman v. Garringer, 1 Mont. 535.

2 Osgood v. El Dorado, etc., Co.,

56 Cal. 571, 581; Weaver v. Eureka Lake Co., 15 Cal. 271.

3 Ophir Silver M. Co. v. Carpenter, 4 Nev. 534; Weaver v. Eureka Lake Co., 15 Cal. 271; Parke v. Kilham, 8 Cal. 77; Kimball v. Gearhart, 12 Cal. 27; Osgood v. El Dorado, etc., Co., 56 Cal. 571.

cuniary 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."1 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 knowledge 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. 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."

§ 53. When appropriation is complete.

Al

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. though, 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 completion,

[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 approPOM.RIP.-6

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.]

(81)

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.1 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. Kidd2 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 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

1 [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.

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.

§ 54. 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 properly given, and the work of constructing the dam, ditch, reservoir, or other necessary instrumentalities of the diversion was 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

1Osgood 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.

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

Rep. 901; Irwin v. Strait, 18 Nev. 436, s. c. 4 Pac. Rep. 1215. Although the cases generally say that the right relates back to the time of commencing the work, there would seem to be no reason why the relation should not extend back to the time of giving the notice. The notice is the essential, initial step in one entire continuous proceeding, and the due diligence 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.'

1 [In Irwin v. Strait, 18 Nev. 436, s. 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.]