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Show METHODS OF APPROPRIATING WATER OF WATERCOURSES 283 Texas, persons, associations, corporations, and districts may enter upon lands or waters of any person for examination and survey necessary to the selection of reservoir sites and rights-of-way.319 The author's attention has not been called to any high court decision in which the validity of this statutory right of entry upon private land for the sole purpose of obtaining data was called in question. As discussed above under "The Land Factor in Appropriating Water-Private Lands," the Idaho Supreme Court has held that such an entry for the purpose of obtaining data needed in applying for a permit to appropriate water, without the owner's permission, is a trespass. As such, it cannot be the foundation of a valid appropriative right.320 Idaho has no statutory authorization to enter lands for this sole purpose comparable to these just noted. Query: What would be the attitude of the Idaho Supreme Court to such a statutory provision ignoring, as it does, questions of landowner permission and condemnation? METHODS OF APPROPRIATING WATER OF WATERCOURSES Procedures for acquiring stream water appropriative rights in the West developed from informal steps of taking water from a stream and turning it onto the ground, to administrative methods provided by State statutes under which all successive steps in the appropriative process are prescribed. In most jurisdictions, these requirements must be followed scrupulously if an intending appropriator is to perfect his right. Before public controls were imposed upon the appropriative process, one could appropriate water as a matter of right, so long as the water was available in the stream in excess of then existing rights and provided the would-be appropriator could get access to the source and to the place of intended use. But with the advent of the so-called "water codes"-State statutes providing for the acquisition of appropriative rights and generally for their adjudication and for distribution of the water under State administrative agencies-acquisition of the right thereunder became less and less a matter of positive right, and more and more a privilege accorded to an applicant whose proposed project does not, in the judgment of the State administrator, conflict with the public interest or impair the public welfare. In the determination of these factors the administrator is accorded a wide discretion, subject to judicial review. Restrictions on the right to appropriate water and preferences in acquiring and exercising the right, which constitute an important phase of the appropriative process, are discussed immediately following the present topic of "methods." The current method of appropriating water generally under State adminis- trative procedure is in effect in a large majority of Western States. It has operated so long as to be a well-established feature of the complex whole of western water control. Its major importance is commonly taken for granted. 319 Tex. Rev. Civ. Stat. Ann. art 7580 (1954). ^Marshall v. Niagara Springs Orchard Co., 22 Idaho 144, 153-158, 125 Pac. 208 (1912). |
