In order to make an appropriation of water valid under the Arid Region doctrine, there must be a bona fade intention to use the water for some beneficial purpose ; Davis v. Gale, 32 Cal. 33, 91 Am. Dec. 554 ; Wool man v. Garringer, 1 Mont. 543 ; Dick v. Caldwell, 14 Nev. 167; Munroe v. Ivie, 2 Utah 535; Ft. Morgan Land & Canal Co. v. Ditch Co., 18 Colo. 1, 30 Pac. 1032, 36 Am. St. Rep. 259. The intention to appropriate must be shown by the work and labor usual in such enterprises to accomplish the end. If there is no actual intention to appropriate the water for a beneficial purpose, or if there is unnecessary delay in the completion of the works for the appropriation of the wa ter, a subsequent appropriator who diverts and applies the water for a beneficial pur pose has the superior right ; Ball v. Kehl, 87 Cal. 505, 25 Pac. 679; Feliz v. Los Angeles, 58 Cal. 80 ; Basey v. Gallagher, 20 Wall. (ti. S.) 682, 22 L. Ed. 452; Jennison v. Kirk, 98 U. S. 453, 25 L. Ed. 240. A ditch or canal company may appropriate or divert water and then sell it to other persons, provided the water is all applied to beneficial purposes by the persons to whom it is sold ; Combs v. Ditch Co., 17 Colo. 146, 28 Pac. 966, 31 Am. St. Rep. 275. It is also necessary to the va lidity of an appropriation that the water be used continuously. If allowed to run to waste for any length of time it will be treat ed as abandoned and open for a fresh appro priation. But water once lawfully appro priated is not lost by a change in its use ; Hill v. Smith, 27 Cal. 476; Sims v. Smith, T Cal. 148, 68 Am. Dec. 233.
All persons in the Arid Region competent to hold lands have also the right to appro priate water; Lobdell v. Hall, 3 Nev. 507; Quigley v. Birdseye, 11 Mont. 439, 28 Pac. 741. But under the Arid Region doctrine an appropriator need not necessarily be a ripa rian owner of land. The right to appro priate is not an incident of the soil, but is simply a possessory right acquired by valid appropriation ; Strickler v. City of Colorado Springs, 16 Colo. 61, 26 Pac. 13, 25 Am. St. Rep. 245 ; Bloom v. West, 3 Colo. App. 212, 32 Pac. 846 ; Barnes v. Sabron, 10 Nev. 217; Basey v. Gallagher, 20 Wall. (U. S.) 670, 22 L. Ed. 452; Broder v. Min. Co., 101 U. S. 276, 25 L. Ed. 790; Titcomb v. Kirk, 51 Cal. 288 ; Kinney, Irrig. § 156.
A provision that no land shall be included in an irrigation district, except such as may be benefited by the system of irrigation used in that district, means that the land must be such that it may be substantially benefit ed. It is not sufficient that such irrigation creates an opportunity thereafter to use the land for a new kind of crop, while not sub stantially benefiting it for the cultivation of the old kind, which it has produced in rea sonable quantities, and with ordinary cer tainty, without the aid of irrigation; Fall brook Irrigation Dist. v. Bradley, 164 U. S. 112, 17 Sup. Ct. 56, 41 L. Ed. 369.
In order to make an appropriation valid there must be sufficient notice to the public of the intention to appropriate; and the notice may be in any form which gives the name of the appropriator and a descrip tion of the stream and of the purposes for which the water is to be taken; Osgood v. Min. Co., 56 Cal. 571.
In Krell v. U. S., 79 Fed. 241, 24 C. C. A. 543, it was held that the previous establish ment of a government reservation below the point of appropriation does not affect the right, except so far as the waters of the stream have been previously appropriated for the use of such reservation. But Gilbert,
J., dissented on the authority of Sturr v. Beck, 133 U. S. 541, 10 Sup. Ct. 350, 33 L. Ed. 761, which held that a homestead entry man on land over which the waters of a creek flowed had the right to the natural flow of the water as against a subsequent ap propriation.
The rights of an appropriator of water for irrigating purposes are not interfered with by a subsequent appropriation for min ing purposes at a point further up the stream, unless the use for the latter purpose impairs the value of the water for the pur pose of irrigation; Wyatt v. Irr. Co., 1 Colo. App. 480, 29 Pac. 906 ; but the mine user is liable to the lower user for injury to the land by debris discharged from .the mill; Montana Co. v. Gehring, 75 Fed. 384, 21 C. C. A. 414.
The liability of an irrigation company for failing to supply a certain volume of water to the holders of water rights, according to contract, cannot be determined on the theory that the company is a common carrier ; Wyatt v. Irrigation Co., 1 Colo. App. 480, 29 Pac. 906.
Although in the Arid Region the doctrine of appropriation generally prevails, the old common-law doctrine of the reasonable use of water by a riparian owner for irrigation is not entirely abolished in all the jurisdic tions. In some states the common-law doc trine has been entirely abolished, but in oth ers it exists side by side with the doctrine of appropriation, and is applied usually in the case of riparian owners who, making no claim to an appropriation, wish to use some of the waters of a stream for irrigation ; Kinney, Irrig. 273.
By statute in many of the arid and semi arid states the construction of reservoirs is directly encouraged, and the federal govern ment has constructed numerous reservoirs. Early customs required merely the taking of the water and its application to a beneficial use. Early legislation required the posting of an official notice at the point of reversion and the recording of the same with the coun ty clerk. Now a state engineer has general supervision over the waters of the state. No appropriation can be made except under a permit issued by him, and the applicant must file a map. The states are divided into ir rigation divisions embracing the entire branch of a given stream. Each division is divided into districts for administrative pur poses. They generally embrace some par ticular tributary of the main stream. The states in the exercise of their police power have assumed the entire control of the dis tribution. The amount of water to which au appropriator is entitled, and the in which he shall be served are governed by the courts and the boards. The measurement of water is one of the most complicated sub jects, since modern science has not yet satis factorily solved the problem. From the na ture of the business of transporting water many ditch companies have been formed ; they rarely have competition, and in order that their rates may not be confiscatory, it is generally provided that they shall be fixed by some governing board to insure reason ableness.