CHAPTER V. FROM WHEN PRIORITY DATES. In the case of Sieber et al. vs. Frink et al., 7 Colo., 153, the Court says: "We accept the rule adopted in California and Nevada in this connection: although the appropriation is not deemed complete until the actual diversion or use of the water; still if such work be prosecuted with reasonable diligence, the right relates back to the time when the first step was taken to secure it.' Osgood vs. El Dorado, etc., Co., 56 Cal., 571. Lehigh Irr. Co. vs. Moyle et al., 9 West Coast Irwin vs. Strait, 18 Nev., 436. Woolman vs. Garringer, 1 Mont., 535. In Ophir Silver M. Co. vs. Carpenter, it was held: "If 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. When the work . . . is not prosecuted with diligence, the right to the use of the water dates. from the time when the work is completed." 4 Nev., 534. But see G. S. 1720, in this connection, since 1881. G. S. 1719. Extending Head of Ditch Up Stream.] In case the channel of any natural stream shall become so cut out, lowered, turned aside or otherwise changed from any cause as to prevent any ditch, canal or feeder of any reservoir from receiving the proper inflow of water to which it may be entitled from such natural stream, the owner or owners of such ditch, canal or feeder shall have the right to extend the head of such ditch, canal or feeder to such distance up the stream which supplies the same, as may be necessary for securing a sufficient flow of water into the same, and for that purpose shall have the same right to maintain proceedings for condemnation of right of way for such extension as in case of constructing a new ditch, and the priority of right to take water from such stream through such ditch, canal or feeder, as to any such ditch, canal or feeder, shall remain unaffected in any respect by reason of such extension; Provided however, That no such extension shall interfere with the complete use or enjoyment of any other ditch, canal or feeder. [Sec. 1, pp. 161-2, acts 1881. The proviso, of course, means any other which has prior rights, and is but the enactment of the rule stated in Davis vs. Gale, 32 Cal., 26, and Sieber et al. vs. Frink et al., 7 Colo., 148, that “a change of the point of diversion on the same stream does not affect the priority acquired by the original appropriation, provided the quantity of water diverted remains the same, and no intervening appropriator is injured." The rights of a purchaser under a verbal sale will date only from the time when he enters into possession. Smith vs. O'Hara, 43 Colo., 37. When a party fails to connect himself in interest with those who first cultivated the land and appropriate the water of a stream: Held, that his own first use of the water must be taken as the inception of his right. Chiatovich vs. Davis, 17 Nev., 133. CHAPTER VI. PRIORITY-HOW LOST. As we have seen (Ch. IV.) a priority may be lost by failure to comply with G. S. 1720; also by failure to use due diligence in pushing the work to completion, etc. To acquire a right to water from the date of diversion, one must within a reasonable time employ the same in the business for which it was taken. A failure to use the water is competent evidence of an abandonment of the right thereto; and if continued for an unreasonable period, it creates a presumption of an intention to abandon; but this presumption is not conclusive, and may be overcome by other satisfactory proofs. Sieber et al. vs. Frink et al., 7 Colo., 148. Larimer Co. Res. Co. vs. People, 9 West Coast Rep. (Colo.), 527. Keeney vs. Carillo, 2 New Mex., 480. Priority may also be lost by an adverse use of the water by another for a sufficient length of time to bring it within the Statute of Limitations, and acquiescence therein on the part of the former appropriator. Therefore injunction will lie in such case, without proof of actual damage. Brown vs. Ashley, 16 Nev., 312. ་ Moore vs. Clear Lake, etc., 8 West Coast Rep. (Cal.) 322. Smith vs. Logan, 18 Nev., 149. Crandall vs. Woods, 8 Cal., 136. Anaheim W. Co. vs. Semi-Trop. W. Co., 64, A prior appropriator who for many years makes no use of the water, but allows another to construct a ditch and divert such water without notifying the latter of his prior appropriation, will be presumed to have abandoned the same. Dorr vs. Hammond, 7 Colo., 79. Lehi Irr. Co. vs. Moyle et al., 9 West Coast Since the right held by an appropriator is an interest in land, an attempted verbal sale or transfer of his right operates as an abandonment of his priority, inasmuch as it conveys nothing' to the other party, and at the same time shows an intent on his part to relinquish his interest. Smith vs. O'Hara, 43 Cal., 341. Barclay vs. Tiekele, 2 Mont., 59. Neither a change of the point of diversion on the same stream, nor a change in the use to which the water is put, will affect the priority of an appropriation, provided there be no change in the amount taken or the quality of the water when returned to the stream, and providing no intervening appropriator's rights be affected. Sieber et al. vs. Frink et al., 7 Colo., 148. One may also appropriate water and return it to the natural stream and take it out again below, and the whole be regarded as one and the same appropriation. But it must be returned with the intent to recapture it below. Davis vs. Gale, 32 Cal., 26. Richardson vs. Kier, 37 Id. 263. A priority may also be lost, as we shall see later (Ch. VII.) by failure to make the record required by statute of those who made valid appropriation prior to June 1, 1881. I, |