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Show 466 THE APPROPRIATIVE RIGHT opinion regarding permissible changes in locational use of appropriated water was woven into the judicial argument, it was not necessary to the actual decision. In the last analysis, the decision rested on the points that the purpose of an irrigation district is to furnish water to lands within its boundaries; that no one can gain a right to use of district waters merely by using them for irrigation purposes for a period of time; that the statutory procedure for bringing outside lands within an irrigation district and its water rights is exclusive; and that in the instant case such procedure had not been followed. Severability and Conditions of Severance Absolutely inseparable appurtenance of an appropriative right to a specific tract of land does not appear to be legally practicable. Even should the State law be adamant in providing that such a right shall not be detached from the tract to which it is appurtenant without loss of priority-without which priority the right would be unenforceable as against other appropriators-it is nevertheless subject to loss in several ways. These are chiefly voluntary abandonment, involuntary statutory forfeiture for nonuse, and adverse possession that ripens into prescription. Even though abandonment is voluntary, there is no such thing as abandonment to a particular person or for a consideration. In short, an appropriative right requires constant attention and substantially continuous beneficial use to keep it in good standing and to avoid loss to the owner in some way sanctioned by law. The right to change the place of use of water under an appropriative right is granted by statute or court decision, or both, in a large majority of the Western States. (See "Exercise of the Appropriative Right," below.) Qualifications and conditions are provided for the exercise of this right; but an appropriator who qualifies may make the change. Hence, although in most instances the appropriative right becomes attached or appurtenant to the initial place of use, the appurtenance is not inseparable when conditions prevail under which a change in the place of use is authorized. As stated earlier in this topic, if all conditions are met, the appropriative right may be detached from one tract of land and transferred to other land, in which event the right becomes appurtenant to the tract to which it is transferred, and without loss of priority. Most of the western water rights statutes provide procedures under which such a change of place of use, with detachment from the one tract and simultaneous attachment to another designated tract, may be effectuated. All the administrative control statutes require petition to and approval of the State administrative agency before such a change may be made. In reaching his decision, the administrator must take into consideration the reasons advanced by the petitioner, the possible effect of the proposed change on stream water conditions, and any matters of public welfare that may be involved. An invariable condition of the right to make such a change in place of use, whether or not under the jurisdiction of a State administrative agency, is that no injury shall be inflicted upon holders of other water rights. Those who fear |
