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Show 372 SUMMARIES OF THE STATE WATER RIGHTS SYSTEMS that the appropriative right is an appurtenance to the realty in connection with which the use of water is made has had judicial recognition.52 In a 1956 case, the Nevada Supreme Court stated that the law of Nevada is settled beyond dispute that despite the lack of legislative expression prior to 1903, appurten- ance of water to the land upon which it is used has been the law since the time when waters were first rightfully appropriated to beneficial use in the jurisdiction. It took no legislation, said the court, to establish the doctrine of appurtenance in arid Nevada.53 Likewise, shares in a mutual irrigation company are appurtenant to the land of the shareholder, and pass upon conveyance of the land and appurtenant water rights, even though the stock is not mentioned or the certificates formally transferred.54 The rule that practices in exercising appropriative rights must be reasonably efficient applies to works for diversion and conveyance of water to the place of use, as well as to application of water to land.55 But whether the water is taken from the stream by means of a ditch, flume, pipe, or any other artificial method is immaterial.56 However, to constitute a valid appropriation of water of a flowing stream there must be an actual diversion; cutting wild grass produced by stream overflow will not found a right of appropriation.57 This requirement does not apply to an appropriation for watering livestock in natural watering places formed by natural depressions.58 The stock watering act of 1925 (noted earlier under "Procedure for appropriating water") relates to particular watering places, at which the quantity of water appropriated is measured by the number and kind of animals; and it obviously contemplates use of the water in place, with no question about diverting it from the stream. The appropriator first in time has the better right.59 But although all later "Prosole v. Steamboat Canal Co., 37 Nev. 154, 161, 164, 140 Pac. 720, 144 Pac. 744 (1914). "Zolezziv. Jackson, 72 Nev. 150, 153-154, 297 Pac. (2d) 1081 (1956). 54Pacific States Savings & Loan Corp. v. Schmitt, 103 Fed. (2d) 1002, 1004-1005 (9th Cir. 1939). The court conceded that for certain purposes shares of this character are personal property and that their independent transfer may operate as a severance of the appurtenant water rights or ditch rights which they evidence. '"'Kent v. Smith, 62 Nev. 30, 39, 140 Pac. (2d) 357 (1943); Doherty v. Pratt, 34 Nev. 343,348, 124 Pac. 574(1912). If waste by seepage and evaporation can be prevented by draining swamps and depressions, or by substituting improved methods of conveying water for inefficient methods, then, said the Nevada Supreme Court, such desired improvement should be made at the expense of a junior appropriator who desires to utilize the water thus saved. Tonkin v. Winzell, 27 Nev. 88, 99-100, 73 Pac. 593 (1903). "Miller & Lux v. Rickey, 127 Fed. 573, 584 (C.C.D. Nev. 1904). 57 Walsh v. Wallace, 26 Nev. 299, 327-328, 67 Pac. 914 (1902); Anderson Land & Stock Co. v.McConnell, 188 Fed. 818, 822 (C.C.D. Nev. 1910). 58Steptoe Live Stock Co. v. Gulley, 53 Nev. 163, 171-173, 295 Pac. 772 (1931). 59 Vineyard Land & Stock Co. v. Twin Falls Oakley Land & Water Co., 245 Fed. 30, 34 (9th Cir. 1917). This rule of priority in time as the basis of a prior right applies likewise |
