Of An Appropriative Right
Waters available for appropriation include water not yet appropriated that may be found in rivers, streams, lakes or swamps.
In Duckworth v. Watsonville Water & Light Co., (150 Calif. 520, 525, 528-529, 531 89 Pac. 338 (1907) it was ruled that a watercourse may terminate in discharge to another stream, a swamp, sandy wash or lake. A lake physically connected with a watercourse is legally part of it and lake, and stream, are subject to appropriative rights.
The court stated:
"The right to appropriate water under the provisions of the Civil Code is not confined to streams running over public lands of the United States. It exists wherever the appropriator can find water of a stream which has not been appropriated, and in which no other person has or claims superior rights and interests. And the right cannot be disputed except by one who has or claims a superior right or interest, and by him only as far as there is a conflict. It cannot be vicariously contested by another on behalf of the owner of the better right."
Physical control of the water is necessary in establishing and exercising an appropriative right.
Yuba River Power Co. v. Nevada Irr. Dist., (207 Calif. 521, 525, 279 Pac. 128, (1929) - Control of the water by taking it from the source of supply is necessary in exercising an appropriative right.
In Parks Canal and Mining Co. v. Hoyt, 57 Calif, 44, 46, (1880) the court affirmed that a water right does not attach unless one has acquired control of the water. (See also Bader Gold Min. Co. v. Oro Electric Corp. 245 Fed. 449, 451-452, C.C.A. 9th, (1917).
Upon completion of necessary work with due diligence and good faith, priority date of the appropriation relates back to the date of the first act of possession.
Kelly v. Natoma Water Co., 6 Calif. 105, 108 (1856); [reference to Stark v. Barnes 4 Calif. 412, 413-414 (1853)], in regard to the "doctrine of relation" with respect to acquiring a water right: "where a number of acts are to be performed, in virtue of which right accrues, the time of performance of the last act, when all have been performed in good faith, relates back to the commencement of the series of acts which create the right, so as to make it perfect when the first act was being commenced." (The date relates back to the first act of possession but not to the intention to appropriate.) (See also Maeris v. Bicknell. (1857).
In Kimball v. Gearhart, 12 Calif. 27, 31, (1859), the court ruled that the mere construction of a ditch with the intention of appropriating water from a stream is not sufficient, in itself, to establish a right to the use of such water. The title is perfected when the appropriation is complete. When completion of the appropriation occurs, then the priority dates, by relation, from the beginning of the work, provided that the necessary prerequisites have been fulfilled. (See also Hewitt v. Story 64 Fed. 510, 514-515- C.C.A. 9th (1894.)
In Duckworth v. Watsonville Water & Light Co., 170 Calif. 425, 432, 150 Pac., (1915), the court stated in reference to the necessity of diligence and good faith in completion of the appropriation and evoking the doctrine of relation back:
"The principles established in the cases cited are founded in reason. The doctrine is that no man shall act upon the principle of the dog in the manger, by claiming water by certain preliminary acts, and from that moment prevent others from enjoying that which he is himself unable or unwilling to enjoy, and thereby prevent the development of the resources of the country by others."