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266892 MARCH 1930





1. Use of Water for Irrigation, Etc., Public Use.

The use of the waters of this state for irrigation, mining and manufacturing purposes shall be deemed a public use. ($ 1, Art. XXI, State Const.)

The condemnation of land for irrigation purposes is a public use. 20 W. 454. Waters of lakes may be used for irrigation. 42 W. 43.

The provision authorizing water for manufacturing is in conflict with the federal constitution if the water is used for a private use. 39 W. 648.

Statutory declaration that the use of waters is public. $ 11 infra. ·



2. Unit of Measurement.

The unit of measure for water for irrigation, mining, milling and mechanical purposes in this state shall be a cubic foot of water per second of time. (L. '90, p. 729, $ 1; Rem.-Bal., § 6315.)

3. Right of Appropriation.

The right to the use of water in any lake, pond or flowing spring in this state, or the right to the use of water flowing in any river, stream or ravine of this state, for irrigation, mining or manufacturing purposes, or for supplying cities, towns or villages with water, or for waterworks, may be acquired by appropriation, and, as between appropriations, the first in time is the first in right. (L. '91, p. 327, § 1; Rem.-Bal., § 6316.)

See also $$ 11, 12, 13, 33, 49, 66 and 79.
Riparian rights. See § 12.
Appropriation of seepage waters. See $ 15.
Appropriation of overflow waters. See $ 16.
Change of use. See § 17.
Adjudication of priorities. See § 61.

4. Notice of Appropriation.

Any person, persons, corporation or association desiring to appropriate water must post a notice in writing in a conspicuous place at the point of intended storage or diversion, stating therein: (1) that such appropriator claims the water there lying, being or flowing to the extent of one cubic foot of water per second of time, or some multiple or some fractional portion thereof; (2) the purpose for which said water is appropriated, and the place or places, as near as may be, of intended use; (3) the means by which it is intended to store or divert the same; (4) a copy of the notice must, within ten days after it is posted, be filed for record in the office of the county auditor of the county in which it is posted. (L. '91, p. 327, § 2; Rem.-Bal., $ 6317.)

See also $$ 6, 33, 34, 61 and 66.

Appropriation by United States. See § 241. 5. Construction of Works, When to Begin.

If said use is by storage, the appropriator must, within three months after the notice is posted, commence the construction of the works by which it is intended to store the same. If said use is by diversion, the appropriator must, within six months after the notice is posted, commence the excavation or construction of the works by which it is intended to divert the

it being herein expressly provided that such works must be diligently and continuously prosecuted to completion, unless temporarily interrupted by the elements. (L. '91, p. 328, § 3; Rem.-Bal., $ 6318.)

When right attaches. See § 14; see also $ 46. 6. Vested Right—Forfeiture by Non-Compliance.

By a strict compliance with the above rules, the appropriator's right to the use of the water actually stored or diverted relates back to the time the notice was posted; but a failure to comply therewith deprives the appropriator of the right to the use of the water as against a subsequent appropriator who faithfully complies with the same. (L. '91, p. 328, § 4; Rem.Bal., § 6319.)

See $$ 4, 14, 46, 50 and 145.


7. Prior Appropriations, How Perfected.

Persons who have heretofore appropriated water, and have not constructed works, or have not diverted the water and applied it to some purpose, as herein stated, must, within thirty days after this act takes effect, proceed as in this act provided, or their right ceases. (L. '91, p. 328, $ 5; Rem.-Bal., $ 6320.)

“Act” here refers to $$ 3, 4, 5, 6, 7, 8, 9 and 10 herein, and this act took effect March 9, 1891.

8. Transfer of Right-Notices to Be Recorded.

The right to the use of water acquired by appropriation may be transferred, like other property, by deed. The county auditor of each county in this state must keep a book in which he must record the notices provided for in this chapter. (L. '91, p. 328, § 6; Rem.-Bal., § 6321.) 9. Former Appropriations Recognized.

Appropriations of water heretofore made for any of the purposes in this chapter provided are hereby recognized, but this chapter shall not be construed to interfere with vested rights. (L. '91, p. 328, § 7; Rem.-Bal., § 6322.)

See note to 8 7. "Appropriations of water heretofore made" means appropriations made prior to March 9, 1891.

See also chapter VI, § 60 et seq.
See also $ 145.

Appropriation by United States. See § 241. 10. Applications of Above Provision.

The provisions of section 4, 5, 6 and 7 shall only apply to appropriations of water made for irrigation, and shall not apply to appropriations for irrigation made prior to the passage of this act, nor to water rights existing at the date of the passage of this act: Provided, That in appropriations for irrigation, begun but not completed prior to the passage of this act, the appropriator shall comply with the provisions of sections 4, 5, 6 and 7: And further provided, That said sections shall not interfere with the vested rights of any irrigation district now organized. (L. '91, p. 328, § 8; Rem.-Bal., $.6323.)

“Act," as used in this section, refers to $$ 3 to 10, inclusive, and $ 17, and went into effect March 9, 1891.

Appropriation by United States. See § 241.

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