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Show 264 APPROPRIATION OF WATER and water, or by one holding lands under contract for its purchase.206 Also acceptable is rightful possession of land under a contract with the owner the nature of which does not appear in the record.207 The Washington Supreme Court rendered conflicting decisions on the question of landownership as a qualification of an appropriator of water. Apparently, it came to favor the principle that the appropriator need not own the land in order to initiate the appropriation, but that if the proposed appropriation is to be perfected, he must necessarily make some arrangements to operate the land on which he expects to complete the appropriation by application of the water to beneficial use.208 In 1924, without mentioning the earlier Washington cases, the supreme court stated that it was not necessary that an appropriator be the owner of any lands, riparian or otherwise.209 Two years later, without referring to the 1924 decision and without citation of any authorities, the supreme court said that while it had held, as was done generally, that an appropriator of water need not own any land in order to make a valid appropriation, it is equally true that an appropriation of water is only valid to the extent of lands which may be acquired and to which the water is applied beneficially and with reasonable diligence.210 The point at issue in this case was not landownership as a qualifica- tion of an appropriator. The question was whether an appropriative right could be "tacked" onto an original appropriation for a much larger tract than was ever irrigated or eventually acquired. This, it was held, could not be done. The Arizona rule.-The Arizona rule with respect to the landownership qualification question, as declared by the courts of the State, is specific. For many decades this has been so. This is true despite the legislative recognition of "any person" as an appropriator under the statute. In 1901, the Territorial supreme court stated that under the Spanish and Mexican laws enforced in the State of Sonora, of which Arizona had formed a part, landholding was the basis for any valid appropriation of water from a public stream, and that this became a part of the Territorial laws.211 Long after 206St. Onge v. Blakely, 76 Mont. 1, 18, 23, 245 Pac. 532 (1926). 201Smith v.Denniff, 24 Mont. 20, 28-29, 60 Pac. 398 (1900). 20AThorpe v. Tenem Ditch Co., 1 Wash. 566, 570, 20 Pac. 588 (1889), negated the requirement of landownership, referring to Wash. Laws 1873, p. 520, which authorized holders of title or possessory right to agricultural lands in Yakima County to appropriate water for irrigation. In Avery v. Johnson, 59 Wash. 332, 334, 109 Pac. 1028 (1910), the court announced that one who seeks to claim water for irrigating agricultural land by appropriation must own the land or be an actual bona fide settler having a possessory interest, with evidence of an intent to acquire title, and that a mere squatter can claim no water right. This was followed in Sander v. Bull, 76 Wash. 1, 6, 135 Pac. 489 (1913). 209In re Alpowa Creek, 129 Wash. 9,17, 224 Pac. 29 (1924). 210In reAhtanum Creek, 139 Wash. 84, 98-99, 245 Pac. 758 (1926). inSlosser v. Salt River Valley Canal Co., 7 Ariz. 376, 385-386, 393 65 Pac. 332 (1901), appeal dismissed, 195 U.S. 639 (1904); Biggs v. Utah Irrigating Ditch Co., 7 Ariz. 331, 350-351, 64 Pac. 494(1901). |