CHAPTER VIII.

Nature and Extent of Rights Acquired to Waters in the

Arid Region by Appropriators.

$222. Extent of Subject Treated in Chapter. The present chapter will treat of the nature and extent of water rights acquired by an appropriator by virtue of his appropriation of the waters of streams or lakes flowing over the public lands of the United States; the doctrines of abandonment and estoppel, as the same are construed by Courts of the various States and Territories in the arid region; also the appropriator's right of conveyance of ditch property and water rights, and also his right to sell the water to consumers after its diversion.

I. Rights Acquired by Virtue of an Appropriation of the Waters of Streams or Lakes.

§ 223. What Is a Water Right?-Right to running water, under the common law, is defined to be a corporeal right, or hereditament, which follows or is embraced by the ownership of the soil over which it naturally passes.1 Owing to the necessities and needs of the settlers and miners, growing out of the peculiar climatic conditions and topographical features in the arid West, the common law rule upon this subject has been modified, and the right to running water exists also as a corporeal right, without private ownership of the soil over

1 Angell on Water Courses, Section 5; 1 Greenleaf's Ed. Cruise's Digest, 39.

which it naturally runs by virtue of the prior appropriation of the water of the natural stream to some beneficial use or purpose, and as such it has none of the characteristics of personalty, but is a species of realty.' The very early case in California, of Hill vs. Newman,2 has been followed by the later authorities upon the subject, and the Court in that decision said: "From the policy of our laws it has been held in this State to exist without private ownership of the soil, upon the ground of prior location upon the land, or prior appropriation and use of the water. The right to water must be treated in this State as it has always been treated, as a right running with the land, and as a corporeal privilege bestowed upon the occupier or appropriator of the soil; and as such has none of the characteristics of mere personalty. It therefore follows that a justice of the peace has no power conferred upon him to try a cause where there is an alleged injury arising out of a diversion of water from the natural or artificial channel in which it is conducted." And it is also held that it is only when water is collected in reservoirs or pipes and separated from the original source of supply that it is personal property and subject to sale as an article of commerce. But upon the question of transferring the right to water, the great weight of authority holds that both the water-ditch and the water-right appurtenant thereto are species of realty, and require for their valid transfer the same form and solemnity as is necessary for the conveyance of any other real estate.1

1 Hill vs. Newman, 5 Cal. 445; Lux vs. Haggin, 69 Cal. 392; Lakeside Ditch Co. vs. Crane, 80 Cal. 181; Farmer's High Line Canal Co. vs. Southworth, 13 Cal. 111; Reno Smelting Works vs. Stevenson, 20 Nev. 269; Terrett vs. Mahan, 20 Nev. 89; Kidd vs. Laird, 15 Cal. 161; Butte T. M. Co. vs. Morgan, 19 Cal. 609; Lick vs. Madden, 25 Cal. 209; Hill Smith, 27 Cal. 476, 482; Atchison vs. Peterson, 20 Wall. 507, 512;

vs.

Barkley vs. Tieleke, 2 Mont. 59;
Smith vs. O'Hara, 43 Cal. 371.
25 Cal. 445.

3 Heyneman vs. Blake, 19 Cal. 578.

4 Barkley vs. Tieleke, 2 Mont. 59; Smith vs. O'Hara, 43 Cal. 371; McDonald vs. B. R. M. Co., 13 Colo. 220; Union W. Co. vs. Crary, 25 Cal. 504; Dalton vs. Bowker, 8 Nev. 190; Farmer vs. Ukiah W. Co., 56 Cal. 13; Reed vs. Spicer, 27 Cal. 58; 3 Washburn, Real Prop

§ 224. Property in Ditches and Canals.-A ditch used for the conveyance of water for any beneficial purpose is not a mere easement, neither is it a corporeal or an incorporeal hereditament appurtenant to land. It is itself land.1

The Supreme Court of California, in the case of Reed vs. Spicer, 27 Cal. 58, held: That a deed in which there were two independent descriptions of the interest intended to be conveyed, first by name-"a way to, in, and for the ditch, called Mountain Brow Water Company;" second, by indicating the land which the way crosses, viz, "land owned by Spicer," conveyed a right of way. And the Court in the opinion said: "Substantially the conveyance was of the ditch, for there can be no distinction taken between 'a right of way in a ditch' or 'for' an existing ditch and the ditch itself."

It follows from the above that there is a distinction between the right to the water appropriated from a natural stream and this right to the canal, ditch, or other structure, by means of which the water is diverted from the stream and conveyed to the place where it is to be used. And the difference consists in simply the difference between a corporeal hereditament to land, and the land itself.4 The right of a prior appropriator to have the water flow in the river or stream to the head of his ditch is an incorporeal hereditament, appurtenant to the ditch, and the appropriators' rights to the water diverted thereby.5

§ 225. Amount of Water That May Be Diverted.-The first appropriator from a stream upon the public domain is entitled to use and enjoy the water to the full extent of his

erty, 4th Edition, marginal page 627; Hill vs. Newman, 5 Cal. 445. As to when water itself becomes personal property see Parks. C. M. Co. vs. Hoyt, 57 Cal. 46.

1 Reed vs. Spicer, 27 Cal. 57; Clark vs. Willett, 35 Cal. 534; Hunt vs. Plum, 14 Cal. 148; Merritt vs. Judd, 14 Cal. 59; Burnham vs. Freeman, II Colo. 601.

227 Cal. 58.

3 Corporeal hereditaments are

those which lie in livery, and consist of those which are substantial and permanent, visible and tangible. 9 Am. & Eng. Enc.of Law. 359; 2 Blackstone's Com. 17; 3 Kent Com. 401; Williams Real Property, 10; Rex vs. Trustee, 3 B. and Ad. 216.

4 See Hill vs. Newman, 5 Cal. 445.

5 Lower Kings R. W. D. Co. vs. Kings R. etc. Co. 60 Cal. 408.

original appropriation, even when this includes all the water of the stream all of the time, provided that all that is diverted is continually applied to some useful or beneficial purpose.1 This, of course, is only the case as between appropriators, and does not apply where title to the land through or adjoining which the stream runs was obtained prior to his appropriation in those jurisdictions which recognize and protect the common law riparian rights. By the term "to the full extent of his original appropriation" is meant the full amount of water he is entitled to take out when his appropriation is entirely complete. It does not mean that his rights will be limited simply to the partial amount of his appropriation that he may have taken out of the stream while his works are in the course of construction, provided he prosecuted their construction with all due and reasonable diligence until completed. And as to what constitutes all due and reasonable diligence in reducing a claim of water to possession and ownership is a question dependent on the facts and circumstances shown to exist in each particular case."

A great many of our western streams become nearly dry in the summer, just when the water is most needed for irrigation. And so if a certain stream in the spring-time has a flow of five hundred inches and in the summer-time the flow is reduced to one hundred inches or less, and A as the first appropriator upon the stream has legally completed his appropriation of two hundred and fifty inches, the capacity of his ditch and the amount that he actually uses for the purpose for which he made the appropriation, he is entitled as regards all subsequent claimants to the water either above or below him on the stream to all of the water that flows in it during the period that it is equal to two hundred and fifty

1 Lobdell vs. Simpson, 2 Nev. 274; Ophir Silver Mining Co. vs. Carpenter, 4 Nev. 543; Barnes vs. Sabron, 10 Nev. 217; Nevada Water Co. vs. Powell, 34 Cal. 109; Gale vs. Tuolumne Water Co., 14 Cal. 25; Sims vs. Smith, 7 Cal. 148.

2 Park vs. Kilham, 8 Cal. 77; Weaver vs. The Eureka Co., 15 Cal. 271; Lockhart vs. Ogden, 30 Cal. 547; Kimball vs. Gearheart, 12 Cal. 30; White vs. Todds Valley Water Co., 8 Cal. 444; see Ante Chapter VI., Sections 164, 165.