and complete the structures built by the would-be appropriator. An attempted appropriation for merely speculative purposes avails nothing. Colo. Const., Art. XVI., sec. 6. Dick vs. Caldwell, 14 Nev., 167. Weaver vs. Eureka Lake Co., 15 Cal., 271. An appropriator who duly gives notice, and while prosecuting the work with diligence, gives a second notice for the same water, does not thereby abandon his first claim or lose any of his rights thereunder. Osgood vs. El Dorado Water Co., 56 Cal. 571. If the capacity of an appropriator's ditch is greater than is necessary to irrigate his farming land, he must be restricted to the quantity actually needed for the beneficial uses to which he puts it; but if the water is diverted with due diligence for the purpose of irrigation, the rights of the appropriator are not necessarily limited to the amount of water actually used during the first or second year of the appropriator, or regulated by the number of acres then cultivated; but the object in view at the time the water was first appropriated, is to be considered in connection with the appropriation actually made. Barnes vs. Sabron, 10 Nev., 217. White vs. Todd's Valley Co., 8 Cal., 443. In Dick vs. Caldwell, 14 Nev., 167, appellant claimed "207 inches" of water, on the ground that he had diverted that amount for six years. The trial court awarded him a much less amount; to-wit: "the first right to water from the stream in question for the irrigation of fifty-seven acres of grain and vegetables, and ten acres of grass." The appellate court held: "It is plain that he was entitled to no more, because during that whole period he did not cultivate or irrigate but that number of acres, and he could not have used beneficially any more water than was necessary to irrigate the same. He did not appropriate, in a legal sense, any water except such as he used beneficially. Turning water out of the stream for no useful purpose did not give him any additional rights. . . Turning more water from the stream than he used was waste, not appropriation." To the same effect Simpson vs. Williams, 18 Nev., 432. The question of diligence will depend upon the nature of the country where the work is done, the length of the working season, the labor supply, the extent and magnitude of the works and the like, but not upon such matters as the illness or lack of pecuniary means of the builders. Unusual or extraordinary efforts are not required, but only such constancy and steadiness of purpose or labor usual with men engaged in like enterprises, such assiduity as will show a bona fide intention to complete the work within a reasonable time. It is a question of fact for the jury, and their verdict in general will be conclusive. Osgood vs. El Dorado, etc., Co., 56 Cal., 571. The true test of the appropriation of water is the successful application thereof to the beneficial use designated, and the method of distributing or carrying the same, or making such application, is immaterial. Thomas vs. Guiraud, 6 Colo., 530. Larimer Co. Res. Co. vs. People, 9 West Coast Weaver vs. Eureka Lake Co., 15 Cal., 271. In the first-named case the "diversion" had been made in part merely by building a dam, which caused the water to flow out over the fields. In the other it was held that there "may be a constitutional appropriation of water without it being at the instant taken from the bed of the stream," the act relied on being the formation of a reservoir by utilizing a natural depression which included the bed of the stream, without any diversion of the water. G. S. 314. Shall Commence Work in Ninety Days-Complete in Three Years-Forfeit.] Any company formed under the provisions of this (corporations) act, for the purpose of constructing any ditch, flume, .... . . shall, within ninety days from the date of their certificate, commence work on such ditch, flume . . . line as shall be named in the certificate, and shall prosecute the work with due diligence until the same is completed, and the time of completion of any such ditch . . . line shall not be extended beyond a period of two years from the time work was commenced as aforesaid; and any company failing to commence work within ninety days from the date of the certificate, or failing to complete the same within two years from the time of commencement as aforesaid, shall forfeit all right to the water so claimed, and the same shall be subject to be claimed by any other company; the time for the completion of any flume coustructed under the provisions of this act shall not be extended beyond a period of four years; Provided, This section shall not apply to any ditch or flume. . . . constructed through and upon any grounds owned by the corporation; and Provided further, That any company formed under the provisions of this act to construct a ditch for domestic, agricultural, irrigating purposes, or any or either thereof, shall have three years from the time of commencing work thereon within which to complete the same, but no longer. [Sec. 296 (106) pp. 179-80, G. L. G. S. 1727. Wheels, etc., on Streams.] All persons on the margin, brink, neighborhood or precinct of any stream of water shall have the right and power to place upon the bank of said stream a wheel or other machine for the purpose of raising water to the level required for the purpose of irrrigation. [Sec. 8, pp. 68-69, acts 1861-Sec. 6, p. 364, R. S.-Sec. 1377 (6) p. 516, G. L. The natural overflow of water upon the land would seem to give the owner of the land a valid claim to a priority, as appears from the following: G. S. 1723. Irrigation of Meadows.] All persons who shall have enjoyed the use of the water in any natural stream for the irrigation of any meadow land, by the natural overflow or operation of the water of such stream, shall, in case the diminishing of the water supplied from such stream from any cause prevents such irrigation therefrom in as ample a manner as formerly, have right to construct a ditch for the irrigation of such meadow, and to take water from such stream therefor, and his, her or their right to water through such ditch shall have the same priority as though such ditch had been constructed at the time he, she or they first occupied and used such land as meadow ground. [Sec. 37, p. 106, acts 1879. In view of all the foregoing considerations, the question may well be raised whether there can be a valid appropriation, which could be maintained as a priority against a subsequent bona fide appropriation, by persons or corporations, who, owning no lands themselves, build a ditch and, by making the record required by G. S. 1720, attempt to monopolize the water of a stream for the purpose of speculating in the needs of those who afterwards may settle on lands naturally irrigable from such stream; or who, owning some lands, attempt to claim by appropriation more water than is needed for those lands, with the speculative intent aforementioned. Both the statutes and the decision in Golden Canal Co. vs. Bright, 5 West Coast Rep. (Colo.), 805, recognize the right of ditch corporations "to run the water of the stream or streams named in the certificate through their ditch;" and Art. XVI., sec. 8, of our Constitution, and G. S. 1738-1740, recognize their powers by providing for the regulation of their charges for water. (Ch. XI.) But Art. XVI., sec. 6, of our Constitution says, that the right must be for a "beneficial use;" and G. S. 308 provides for the formation of companies "for the purpose of constructing a ditch for the purpose of conveying water to . . . any lands." Let us now suppose that a corporation constructs a large ditch, and claims to appropriate the entire volume of water ordinarily flowing in it, in order to convey such water above a large unsettled tract over which it has no control; and that afterwards, and before such lands are settled up sufficiently to use such volume of water, a settler near such stream takes out a ditch from it to irrigate his lands. Could that company deny him priority as against their claim, on account of their indefinite prospect of an ultimate settlement of all the lands under their line? Or would their claim not be limited as against such settler, to the amount of water actually needed for such lands as were actually occupied under their line at the time of his settlement? In all these considerations it is of the greatest importance to distinguish between a right to the water and a priority of right thereto. |