| OCR Text |
Show 444 THE APPROPRIATIVE RIGHT explicit or implicit in both statutory and case law. Thus, appropriators of water include natural persons, private associations, corporations, water districts and other public entities, municipalities, States, and the United States. (See, in chapter 7, "Who May Appropriate Water," and see "Elements of the Appropri- ative Right-Sale, Rental, or Distribution of Water," below.) Separable ownerships of ditch and water right.-The water right-an incorporeal hereditament in the flow and use of the stream as a natural resource-is entirely distinct from the property right in the works by which the water is diverted, stored, and carried to the land for beneficial use thereon, or in connection therewith, and each may exist without the other.32 "We have held repeatedly that water rights and ditch rights are separate and distinct property rights. One may own a water right without a ditch right, or a ditch right without a water right."33 The Montana Supreme Court observed that "so far distinct are the water rights and ditch rights that the abandonment of one does not necessarily imply an abandonment of the other."34 It has been long established that a single diversion may be used for the service of several different priorities owned by different appropriators for use in connection with their respective farms.35 An example in some jurisdictions is a public service company which, as a common carrier, may serve many individual farmers in whom title to the water rights is vested but who have no ownership interest in the water system. (See "Elements of the Appropriative Right-Sale, Rental or Distribution of Water," below. See also, in chapter 9, "Diversion, Distribution, and Storage Works.") Separable ownerships of land and water right- According to the weight of authority in the West, one at least rightfully in possession of land, even though not the owner, may make a valid appropriation of water in connection with such tract. Variations and refinements of the general rule occur from State to State. This matter is discussed under "The Land Factor in Appropriating Water" in chapter 7. This, however, is a facet of the question of qualifications of an appropriator. Titles to the land and to the appropriative right acquired for and exercised in connection with the land are not merged by reason of their being held by the same party. They remain separate and distinct items of ownership. As recently as 1962, the Utah Supreme Court declared that: "The right to make use of one's land and the right to use water are two severable things."36 32Murphy v. Ken, 296 Fed. 536, 541 (D. N. Mex. 1923); First State Bank of Alamogordo v.McNew, 33 N. Mex. 414, 437, 269 Pac. 56 (1928). 33 Connolly v. Harrel, 102 Mont. 295, 300-301, 57 Pac. (2d) 781 (1936). 34McDonnell v.Huffine, 44 Mont. 411, 423, 120 Pac. 792 (1912). 35Simpson v. Bankofier, 141 Oreg. 426, 432, 16 Pac. (2d) 632 (1932), 18 Pac. (2d) 814 (1933);Nichols v.Mdntosh, 19 Colo. 22, 24, 34 Pac. 278 (1893). 36Stubbs v. Ercanbrack, 13 Utah (2d) 45, 368 Pac. (2d) 461, 463 (1962). See Whitmore v. Salt Lake City, 89 Utah 387, 397400, 57 Pac. (2d) 726 (1936). |
