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Show 140 PROPERTY NATURE OF WATER AND WATER RIGHTS denied the riparian claim and sustained that of the first taker, saying that although a riparian owner has a right to the usufruct of the natural flow in the stream, "an appropriator of the waters artificially added is a taker of the corpus of that which exists in the stream only by virtue of its abandonment." However, the essential difference here is that the only water the ownership of which was in question was the artificial increment consisting of foreign water that had been once reduced to private possession and thereafter abandoned into the stream. The court did not reject the general rule that the corpus of water naturally flowing in a stream is not the subject of private ownership. It held only that the corpus of water (which had come into private possession by reason of exercise of the original diverter's usufructuary right in the watershed of the Yuba River, and which after such diversion and use had been abandoned into the foreign Wolf Creek watershed) did not by reason of commingling with the waters of Wolf Creek become a part of the natural flow thereof. Ownership by the Public, State, or No One, Subject to Private Rights of Capture, Possession, and Use Natural streamflow belongs to the public, State, or no one.-One of the "first principles" of the law of watercourses, as deduced by Wiel, is that the running water of a natural streams is, as a corpus, the property of no one-variously expressed as being in the "negative community," "common," "publici juris," "the property of the public," or "the property of the State in trust for the people."15 The doctrine of public (or State) ownership of available water supplies has been declared in many of the Western States16 as shown in chapter 1 (see "Declarations of Policy-Ownership of Water Supplies"). Constitutional or statutory declarations of "ownership by no one" have not been found.17 This lsWiel, S. C, "Water Rights in the Western States," 3d ed., vol. 1, § 63 (1911). 16 This, of course, would be subject to the paramount Federal authority regarding navigable waters of the United States discussed in chapter 4. 17 After the Utah legislature had declared that all waters in the State, whether above or in the ground, were the property of the public, subject to all existing rights of use, the Utah Supreme Court decided a case involving the taking of water from streams for camp purposes and for the watering of animals therein without the formality of mak- ing a statutory appropriation of the water: Adams v. Portage In., Res. & Power Co., 95 Utah 1, 72 Pac. (2d) 648 (1937). In holding that the taking was lawful, subject to existing preferential rights of prior appropriation, the court observed that the title to such running water is in the public, all members being equal owners or having equal rights therein; that while flowing naturally in the stream the water must of necessity continue common by the law of nature, "and therefore is nobody's property, [emphasis supplied] or property common to everybody;" and that being common property, all members of the public may exercise the same privileges in respect thereto, subject not only to the same rights in others but to special rights of diversion and use that have theretofore vested under the doctrine of prior appropriation. Id. at 11-12. As to whether this was a purposeful attempt to rationalize the terms "public property," "common property," and "nobody's property," the author is not advised. |