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Show 544 THE APPROPRIATIVE RIGHT propagation.535 But the Colorado Supreme Court held that water may not be so appropriated without a diversion of water from the stream.536 (6) Public versus private fishing rights were involved in litigation in New Mexico and Texas. The New Mexico case involved waters impounded behind a dam in a public stream, part intended for irrigation downstream, part classified as dead storage, and part held back for flood control to be released from time to time as waste water. All the water was held to be public water until beneficially applied to the purposes of its potential use. The organization that impounded these waters had no exclusive privilege in their use while they remained public, and no right of recreation or fishing distinct from the right of the general public therein when properly authorized by the State Game Commission. Access to these waters could be had without trespassing upon private property.537 One of the chief issues in the Texas controversy was the force and effect of a permit granted by the Board of Water Engineers to a recreation club to appropriate and use water impounded in an artificial lake on a statutory navigable stream "for the purpose of game preserve, recreation and pleasure resort." The permittee had no title to the bed of the stream, nor to a public road that crossed the lake near its upper end; but it did own land contiguous to the streambed and submerged by the lake. Although the permittee fenced the land and stocked the lake with fish, it did not have the exclusive right to fish in the lake and it could not prevent the public from fishing therein. And although the public had no right to trespass on the club's privately owned land, fishing from a boat over the club's submerged land was not trespass. This was because the water remained public water even though it spread away from the river channel and overlay private land.538 Recharge of ground water supply.-(I) In California, according to the water rights statute, the storing of water in the ground, including the diversion of streams and the flowing of water on lands necessary to the accomplishment thereof, constitutes a beneficial use of water if the water so stored is thereafter applied to the beneficial purposes for which the appropriation for storage was 535Colo. Rev. Stat. Ann. § 150-7-5(10) (1963). 536 Colorado River Water Conservation Dist. v. Rocky Mountain Power Co., 158 Colo. 331, 406 Pac. (2d) 798 (1965), citing earlier Colorado cases, an Idaho case, and a United States Supreme Court case arising from Idaho. This and other cases concerning the question of the necessity of a diversion in making an appropriation of water are discussed in chapter 9 under "Diversion, Distribution, and Storage Works-Some Features of Waterworks." 537State ex rel State Game Comm'n v. Red River Valley Co., 51 N. Mex. 207, 223-229, 182 Pac. (2d) 421 (1945). See chapter 4, note 98, regarding related aspects of this case, a Wyoming case, Day v. Armstrong, 362 Pac. (2d) 137, 143 (Wyo. 1961), and a contrary Colorado case, Hartman v. Tresise, 36 Colo. 146, 84 Pac. 685, 686-687 (1905). 538Diversion Lake Club v. Heath, 126 Tex. 129, 138-140, 143-146, 86 S. W. (2d) 441 (1935). |