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Show IDAHO 267 way have also been recognized where established by adverse use,69 but the Idaho court has ruled that a valid appropriation cannot be acquired through a trespass upon the lands of another.60 A statute also authorizes rights-of-way over state lands for water conveyance systems.61 3.2 Nature and Limits of Rights a. NATURE OF RIGHT ACQUIRED A statute in Idaho provides that water rights are real property.62 The concept that a water right is in the nature of a real property right has been recognized in a number of Idaho Supreme Court de- cisions.63 Although shares of stock in a water company may be per- sonal property, the water right which is represented by the shares of stock is real property.64 A water right entitles the appropriators to have the water which he has appropriated available at his point of diversion, extends to quality as well as quantity, and extends upstream to the tributary sources which supply the right.65 Of course, the appropriator's right does not extend to the corpus of the water while it is in a natural watercourse or public source of supply.66 b. MEASURE OF THE RIGHT As between those using water, priority of appropriation gives the better right.67 However, all appropriators are limited to their beneficial requirements and a user cannot make a wasteful use of water.68 In addition to being bound by the amount and terms of his appropriation, the water user is further limited to the quantity of water which he can beneficially use at a particular time.69 The ap- propriator's use must be economical and reasonable, and he must maintain reasonable efficiency in transporting the water from the point of diversion to the place of use.70 As noted earlier, an Idaho statute provides that a user is not en- titled to divert more water for irrigation purposes than one cfs for each 50 acres of land, or more than 5 acre-feet per acre of stored water, unless it can be shown to the director that a greater quantity is necessary.71 The question as to what is a reasonable duty of water B>Gorrie v. Weiser Irr. Diet., 28 Idaho 248, 153 Pac. 561 (1915). oo Idaho Power Oo. v. Buhl, 62 Idaho 351, 111 P. 2d 1088 (1941). 81 Idaho code, sec. 42-1104. 62 Idaho code, sec. 55-101. 63 Oda County Farmers' Irr. Go. v. Farmers' Canal Co., 5 Idaho 793, 51 Pac. 990 (1898) ; Gard v. Thompson, 21 Idaho 485, 123 Pac. 497 (1912) ; and Anderson v. Cum- tnings, 81 Idaho 327, 340 P. 2d 1111 (1959). "Bothwell v. Keefer, 53 Idaho 658. 27 P. 2d 65 (1933). 86 Moe v. Harger, 10 Idaho 305, 91 P. 2d 368 (1939) ; and Malad Valley Irr. Co. v. Campbell, 2 Idaho 411, 18 Pac. 52 (1888). Valley Irr. Co. v. Campbell, 2 Idaho 411, 18 Pac. 52 (1888). 66 Albrethsen v. Wood River Land Co., 40 Idaho 49, 231 Pac. 418 (1924). m Idaho Const, art. XV, sec. 3. 68 Idaho code, sec. 42-220. «>Lee v. Hanford, 21 Idaho 327, 121 Pac. 558 (1912). ™ Washington State Sugar Co. v. Goodrich, 27 Idaho 26, 147 Pac. 1073 (1915) ; and Basinger v. Taylor, 36 Idaho 591, 211 Pac. 1085 (1922) ; Glen Dale Ranches, Inc. v. Shaub, et al, 94 Idaho 585, 494 P. 2d 1029 (1972). n Idaho code, sect. 42-220. |