OCR Text |
Show 713 ing a municipality, the state, or the United States," intending to acquire the right to the beneficial use of water shall apply to the commissioner for a permit.11 However, the Arizona Supreme Court has held that in order to appropriate water for irrigation purposes, the appropriator must be the owner or possessor of land susceptible of irrigation, and that if only a possessor, he must have a present intent and apparent future ability to acquire ownership of the land.12 Arizona water law is free from complications of conflicting riparian rights, because the riparian doctrine never has been recognized in that State. The Territorial legislature in 1887 declared that the "common- law doctrine or riparian water rights" should not obtain or be of any force or effect in the Territory,13 and the State constitutional convention in 1910 adopted a similar provision for insertion in the ensuing State constitution.14 In the meantime the Territorial supreme court also had disapproved of the common-law doctrine,15 one such decision having been affirmed by the United States Supreme Court.16 The State supreme court has taken the same position.17 Ground water flowing in "definite underground channels" is subject to appropriation under the Water Code, as noted above. Long prior to that enactment the Territorial supreme court had stated that sub- terranean streams flowing in natural channels between well-defined banks were subject to appropriation under the same rules as those re- lating to surface streams, but that waters percolating through the soil in undefined and unknown channels were not subject to appropriation but belonged to the owner of the soil.18 This view of the ownership status of percolating water as against an attempted appropriation has been "Ariz. Code Ann. 1939, § 75-105. M Tattersfield v. Putnam, 45 Ariz. 156, 168-174, 41 Pac. (2d) 228 (1935). For earlier development of the principle, upon which the court in the Tatters- field case relied, see Slosser v. Salt River Valley Canal Co., 7 Ariz. 376, 385-386, 65 Pac. 332 (1901); appeal dismissed, 195 U. S. 639 (1904). "Ariz. Rev. Stats. 1887, § 3198. The foundation for this repudiation of the riparian doctrine was laid at the first Territorial legislative session in 1864: see Terr. Ariz. Bill of Rights, art. 22, and Howell Code, ch. LV, §§1 and 3 (October 4, 1864). "Ariz. Const, art. XVII, § 1. Arizona was admitted to Statehood Feb- ruary 14, 1912. "Clough v. Wing, 2 Ariz. 371, 380-381, 17 Pac. 453 (1888); Chandler v. Austin, 4 Ariz. 346, 350,42 Pac. 483 (1895). "Boquillas Land & Cattle Co. v. Curtis, 213 U. S. 339 (1909); affirming Boquillas Land & Cattle Co. v. St. David Cooperative Commercial & Develop- ment Assn., 11 Ariz. 128,135-139,89 Pac. 504 (1907). "Pima Farms Co. v. Proctor, 30 Ariz. 96, 102, 245 Pac. 369 (1926); Tatters- field v. Putnam, 45 Ariz. 156,165,41 Pac. (2d) 228 (1935). "Howard v. Perrin, 8 Ariz. 347, 353-354, 76 Pac. 460 (1904); affirmed, Howard v. Perrin, 200 U. S. 71 (1906). |