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Show THE LAND FACTOR IN APPROPRIATING WATER 263 In Idaho, water may be appropriated for beneficial use on land not owned by the appropriator, who nevertheless becomes the owner of the water right.197 The test of a valid appropriation of water is its diversion from the natural source and its application to a beneficial use, not title to the land as between water claimants.198 The right to appropriate water in Oregon exists without private owner- ship in the soil or without perfect title thereto, as against all persons except the Government or its grantees. "Such right acquired by an ap- propriation and beneficial use upon land in the quiet possession of the appropriator and upon which he had made valuable improvements and reclaimed in part, is not dependent upon the title to the soil upon which the water is used."199 The courts of Texas have not held that the validity of an appropriative right depends on the appropriator's holding title to the land in connection with which the right is exercised. However, in administering the current water appropriation act, the Texas Water Rights Commission refuses to accept an application from any individual who does not own the land to be irrigated.200 The Utah Supreme Court holds that one may appropriate water for use on a specific tract of land without having title to the land.201 In general, says the court, a right to the use of water is independent of the right to land.202 However, in refusing to sustain an attempted appropriation of water to irrigate unenclosed and unoccupied public land for the sole purpose of producing food for wild waterfowl, the Utah court held that there must be some type of possessory right in the appropriator good as against all but the Govern- ment.203 The Montana rule does not require fee simple title in the appropriator to land to be irrigated under his right.204 It does apparently contemplate that if the appropriator does not own the land he intends to irrigate, at least rightful possession-that is, a possessory interest- is necessary to his acquisition of a valid water right.205 This requirement is satisfied by lawful entry and settlement on public lands or a bona fide intent to acquire title to both land 191 First Security of Blackfoot v. State, 49 Idaho 740, 746, 291 Pac. 1064 (1930); Sanderson v. Salmon River Canal Co., 34 Idaho 145,160, 199 Pac. 999 (1921). 19*Sarret v.Hunter, 32 Idaho 536, 541-542, 185 Pac. 1072 (1919). 199 Laurence v. Brown, 94 Oreg. 387, 396, 185 Pac. 761 (1919). 200Tex. Water Rights Comm'n, "Rules, Regulations and Modes of Procedure," rule 225.1 under "225. Additional Requirements for Irrigation" (1970 Rev., Jan. 1970). 201 Jensen v. Birch Creek Ranch Co., 76 Utah 356, 362, 289 Pac. 1097 (1930). 202 Witmore v. Salt Lake City, 89 Utah 387, 397-400, 57 Pac. (2d) 726 (1936). 203Lake Shore Duck Club v. Lake View Duck Club, 50 Utah 76, 80-82, 166 Pac. 309 (1917). 204 SY. Onge v. Blakely, 76 Mont. 1, 18, 245 Pac. 532 (1926); Thomas v. Ball, 66 Mont. 161,166, 213 Pac. 597 (1923). 205 Tucker v. Jones, 8 Mont. 225, 229, 19 Pac. 571 (1888). |