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or private, hereafter intending to acquire the right to the beneticial use of any waters, shall, before commencing any construction for such purposes, make an application to the territorial engineer for a permit to appropriate, in the form required by the rules and regulations established by him. Such rules and regulations shall, in addition to providing the form and mannerof preparing and presenting the application, require the applicant to state the amount of water and period or periods of annual use, and all other data necessary for the proper description and limitation of the right applied for, together with such information, maps, field notes, plans and specitications as may be necessary to show the method and practicability of the construction and the ability of the appli. cant to complete the same. All such maps, field notes, plans and specitications shall be made from actual surveys and measurements, and shall be duly tiled in the office of the territorial engineer after the approval of the application. The territorial engineer may require additional information not provided for in the general rules and regulations, in any case involving the diversion of tive hundred cubic feet of water per second, or more, or in the construction of a dam more than thirty feet high from the foundation. The owners of works proposing to store or carry water in excess of their needs for beneficial use, may make application for such excess, and shall be held as trustees of such right for the parties applying the water to a beneficial use; and shall be required to sell water rights for a reasonable price and to furnish the water for such parties at reasonable rates for storage, or carriage, or both, as the case may be.
Sec. 25. The date of receipt of such application in the territorial engineer's office shall be endorsed thereon and noted in his record. If the application is defective as to form, or unsatisfactory as to feasibility or safety of plan, or as to the showing of ability of the applicant to carry the construction to completion, it shall be returned with a statement of the corrections, amendments or changes required, within thirty days after its receipt, and sixty days shall be allowed for the refiling thereof. If retiled, corrected as required within such time, the application shall, upon being accepted, take priority as of date of its original filing, subject to compliance with the further provisions of the law and the regulations thereunder. Any corrected application filed after the time allowed shall be treated in all respects as an original application received on the date of its refiling: Provided, That the plans of the construction may be amended, with the approval of the territorial engineer, at any time; but no such change shall authorize any extension of time for construction beyond five years from the date of the permit, except as provided in Section 35: Provided, further, That a change in the proposed point of diversion of water from a stream shall be subject to the approval of the territorial engineer, under the provisions of Section 45 hereof, and shall not be allowed to the detriment of the rights of others having valid claims to the use of water from said stream.
Sec. 26. Upon the filing of an application which complies with the provisions of this act and the rules and regulations established thereunder, accompanied by the proper fees, the territorial engineer shall instruct the applicant to publish notice thereof, in a form prescribed by him, in some newspaper of general circulation in the stream system, once a week for two cousecutive weeks. Such notice shall give all essential facts as to the proposed appropriation; among them, the places of appropriation and of use, amount of water, the purpose for which it is to be used, name and address of applicant and the time when the application shall be taken up by the territorial engineer for consideration. Proof of publication, as required, shall be filed with the territorial engineer within sixty days of bis instructions to make publication. In case of failure to file satisfactory proof of publication in accordance with the rules and regulations applicable thereto, within the time required, the application shall thereafter be treated as an original application filed on the date of receipt of proofs of publication in proper form.
Sec. 27. Upon the receipt of the proofs of publication, accompanied by the proper fees, the territorial engineer shall determine from the evidence presented by the parties interested, from such surveys of the water supply as may be available, and from the records, whether there is unappropriated water available for the benefit of the applicant. If so, he shall endorse his approval on the application, which shall thereupon become a permit to appropriate water, and shall state in such approval the time within which the construction shall be completed, not exceeding five years from the date of approval, and the time within which the water shall be applied to a beneficial use, not exceeding four years in addition thereto: Provided, That the territorial engineer may, in his discretion, approve any application for a less amount of water, or may vary the periods of annual use, and the permit to appropriate water shall be regarded as limited accordingly.
Sec. 28. If, in the opinion of the territorial engineer, there is no unappropriated water available, he shall reject such application. He shall decline to order the publication of notice of any application which does not comply with the require. ments of the law and the rules and regulations thereunder. He may also refuse to consider or approve an application or to order the publication of notice thereof, if, in his opinion, the approval thereof would be contrary to the public interest.
Sec. 29. The construction of the works shall be diligently prosecuted to completion, and if one-fifth of the work shall not be completed within one-half the time allowed, as determined by the territorial engineer, he may accept and approve, as herein provided, an application for the use of all or any of the waters included in the permit issued to the prior applicant and the right to use such waters under the former permit shall thereupon be forfeited: Frovided, That the territorial engineer shall allow an extension of time on request of the prior applicant, equal to the time during which work was prevented by the operation of law or other causes, beyond the power of the said applicant to control.
Sec. 30. On the date set for the completion of the work, or prior thereto, upon notice from the owner that the work has been completed, the territorial engineer shall cause the work to be inspected, after due notice to the owner of the permit. Such inspection shall be thorough and complete, in order to determine the actual capacity of the works, their safety and efficiency. If not properly and safely constructed, the territorial engineer may require the necessary changes to be made within a reasonable time, to be fixed by him, and shall not issue his certificate of completion until such changes are made. lf at or before the expiration of said time, good cause is shown why said change could not be made within said time, then additional time may be allowed in which to make said change. Failure to make such changes shall cause the postponement of the priority under the permit for such time as may elapse from the date for completing such changes until made to the satisfaction of the territorial engi. neer, and applications subsequent in time shall have the benefit of such postponement of priority; Provided, That for works involving the diversion of not exceeding twenty cubic feet of water per second or a dam not exceeding ten feet in the extreme height from the foundation, the territorial engineer may, in his discretion, accept the report of the inspection by a reputable hydraulic engineer.
Sec. 31. When the works are found in satisfactory condi. tion, after inspection, the territorial engineer shall issue his certificate of construction, setting forth the actual capacity of the works and such limitations on the water right as shall be warranted by the condition of the works, but in no man. ner extending the rights described in the permit.
Sec. 32. If the territorial engineer, shall, in the course of his duties, tind that any works used for the storage, diver
sion or carriage of water are unsafe and a menace to life or property, he shall at once notify the owner or agent, specify. ing the changes necessary and allowing a reasonable time for putting the works in safe condition. Upon the request of any party, accompanied by the estimated cost of inspection, the territorial engineer shall cause any alleged unsafe works to be inspected. If they shall be found unsafe by the terri. torial engineer, the money deposited by such party shall be refunded, and the fees for inspection shall be paid by the owner of such works; and, if not paid by him within thirty days after the decision of the territorial engineer, shall be a lien against the property of such owner, to be recovered by suit instituted by the district attorney of the county at the request of the territorial engineer. The territorial engineer, may, when in his opinion necessary, inspect any works under construction for the storage, diversion, or carriage of water, and require any changes necessary to secure their safety; and the fees for such inspection shall be a lien on any property of the owner and shall be subject to collection as provided herein: Provided, That any works constructed by the United States, or by its duly authorized agencies, shall not be subject to such inspection while under the supervision of the officers of the United States.
Sec. 33. The use of works for the storage, diversion, or carriage of water, contrary to the instructions of the territorial engineer, at any time after an inspection thereof by him, and receipt of notice from him that the same are unsafe for the purpose for which they are used, until the receipt of notice from him that in his opinion they have been made safe, shall be a misdemeanor, and it shall be the duty of the territorial engineer to give prompt notice to the district attorney of the county in which works are located in case of such violation. The district attorney shall at once proceed against the owner, and all parties responsible therefor.
Sec. 34. On or before the date set for the application of the water to a beneficial use, the territorial engineer shall cause the works to be inspected, after due notice to the owner of the permit. Upon the completion of such inspection, the territorial engineer shall issue a license to appropriate water to the extent and ur.der the condition of the actual application thereof to beneficial use, but in no manner extending the rights described in the permit: Provided, That the irspection to determine the amount of water applied to beneficial use shall be made at the same time as that of the constructed work, if requested by the owner, and if such action is deemed proper by the territorial engineer.
Sec. 35. The territorial engineer shall have power to
extend the time for the completion of construction, or for application to beneficial use, for three and two years, respectively, but only on account of delays due to physical and engineering ditficulties which could not have been reasonably anticipated, or by operation of law, or other causes, beyond the power of the applicant to avoid.
Sec. 36. Any permit or license to appropriate water may be assigned, but no such assignment shall be binding, except upon the parties thereto, unless tiled for record in the office of the territorial engineer. The evidence of the right to use water from any works constructed by the United States, or its duly authorized agencies, shall in like manner be filed in the office of the territorial engineer, upon assignment; Provided, That no right to appropriate water, except water for storage reservoirs, for irrigation purposes shall be assigned, or the ownership thereof in any wise transformed, apart from the land to which it is appurtenant, except in the manner specially provided by law: Provided, further, That the transfer of title of land in any manner whatsoever shall carry with it all rights to the use of water appurtenant thereto for irrigation purposes, unless previously alienated in the manner provided by law.
Sec. 37. In any suit concerning water rights, or in any suit or appeal provided for in this act, the court may in its discretion submit any question of fact arising therein to a jury, or may appoint a referee or referees to take testimony and report upon the rights of the parties.
Sec. 38. The attorney general and the district attorney of the county in which legal questions arise, shall be the legal advisers of the territorial engineer, and shall perform any and all legal duties necessary in connection with his work, without other compensation than their salaries as fixed by law, except when otherwise provided.
Sec 39. The owner or owners of any works for the storage, diversion, or carriage of water, which contain water in excess of their needs for irrigation or other beneficial use for which it has been appropriated, shall be required to deliver such surplus at uniform rates to parties entitled to use the same under like conditions and circumstances.
Sec. 40. Whenever the proper officers of the United States, authorized by law to construct works for the utilization of waters within the Territory, shall notify the territorial engineer that the United States intends to utilize certain specified waters, the waters so described, and unappropriat- . ed, and not covered by applications or affidavits duly tiled or permits as required by law, at the date of such notice, shall not be subject to a further appropriation under the laws of the