48o IRRIGATION FARMING. 



termed constructive as distinguished from atlual appro- 

 priation. 



Siber vs. Frink, Supra 



Larimer Co. Res. Co. vs. People, 8 Col. 617 



Wheeler z/^. N. Col. Irr. Co., 10 Id. 588 



Farmers' H. L. C. & R. Co. vs. Southworth, 13 Id. 115 



These decisions have led to much confusion and 

 uncertainty, and the dodlrine will be fruitful of litiga- 

 tion. It is said that when a person commences the 

 construdlion of a ditch, tapping a stream and there- 

 after within a reasonable time completes his ditch and 

 diverts and applies the water to beneficial use, his 

 right thus acquired relates back to the time of the 

 commencement of the construcftion of the ditch. The 

 Constitution seems to give the right to the first a£lual 

 appropriator to beneficial use, but the courts have ap- 

 parently engrafted a new principle upon that instru- 

 ment — the term ' * reasonable time, ' ' uncertain and 

 indefinite in itself, becomes more so when applied to 

 the various cases which arise under these laws. No 

 man knows or can know what is a * * reasonable time ' ' 

 in a given case until the courts have passed upon the 

 case. What might be considered reasonable in one 

 case might be considered unreasonable in another, 

 even under circumstances somewhat similar. * ' Rea- 

 sonable diligence ' ' is said not to imply unusual or ex- 

 traordinary effort. It is also said that sickness and 

 lack of pecuniary means, being matters incident to the 

 person and not to the enterprise, will not excuse great 

 delay, and hence it follows that health and wealth, 

 being also incident to the person only, are not matters 



