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Show WATER POSSESSION BY ARTIFICIAL STRUCTURES 145 have noted qualifications or exceptions (See "Some exceptions to the general rule," below). The old community acequias of New Mexico are usually owned by the builders as tenants in common, although the appropriated water rights of the owners are held by them in severalty. According to the New Mexico Supreme Court, "After the water, the right to divert which, as stated, is vested in the several parties, has been actually diverted under such several rights, into the ditch, and reduced to possession, and by such diversion becomes intermingled, such waters are probably owned by the parties as tenants in common."35 In some of the decisions, it is pointed out that the ownership of water which the diverter from the public stream acquires is not unqualified. Although one who lawfully diverts water from a public water supply into his own works becomes the owner of the corpus of the water, said the Idaho Supreme Court, his ownership is subject to the necessity of making beneficial use of the water.36 This private property right is impressed with a public trust to apply the water to a beneficial use.37 It is only after water has been diverted from the public source into private conduits by permission of the State, said the Utah Supreme Court, that the party who makes the diversion acquires a qualified ownership in the water.38 Some exceptions to the general rule. -Some State supreme court decisions have been to the effect that the one who makes a lawful diversion of water from a public stream does not thereupon become the owner of the corpus. He becomes the lawful custodian of the diverted water, with the rights and responsibilities that pertain thereto. As indicated by the following examples, the duration of this custodianship depends on the judicial view in the particular jurisdiction in which it is exercised. Min. Co. y.Hoyt, 57 Cal. 44,46 (1880). Defendant could not acquire "an ownership in the corpus of the water, except, perhaps, so much thereof as it has actually reduced to possession in its reservoir." Lindblom v. Round Valley Water Co., 178 Cal. 450, 456, 173 Pac. 994 (1918). 35Snow v.Abalos, 18 N. Mex. 681, 695,140 Pac. 1044 (1914). 36Glavin v. Salmon River Canal Co., 44 Idaho 583, 588-589, 258 Pac. 532 (1927). The right of usufruct in the water is "subject to a reasonable use and consumption for domestic and other purposes." Big Rock Mutual Water Co. v. Valyermo Ranch Co., 78 Cal. App. 266, 274, 248 Pac. 264 (1926), hearing denied by supreme court (1926). 37 Washington County In. Dist. v. Talboy, 55 Idaho 382, 389, 43 Pac. (2d) 943 (1935). 3*Spanish Fork Westfield In. Co. v. District Court, 99 Utah 527, 536, 104 Pac. (2d) 353 (1940). Compare the dictum in Adams v. Portage In., Res. & Power Co., 95 Utah 1, 11, 72 Pac. (2d) 648 (1937) - repeated by quotation in a dissenting opinion in In re Bear River Drainage Area, 2 Utah (2d) 208, 216, 271 Pac. (2d) 846 (1954) -- to the effect that in Utah, private waters (as distinguished from public waters) are not only subject to exclusive control and ownership, but may be used, sold, or wasted. This unqualified judicial acknowledgement that water may be wasted is in direct conflict with State policies as declared in Utah and elsewhere in the West (see "State Water Policies-Declarations of Policy-Use of Water-Beneficial use of water," above). Undoubtedly, it was an inadvertent generalization. 450-486 O - 72 - 12 |