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Show REMEDIES FOR INFRINGEMENT 217 are discussed below under "Mandamus" and actions of such agencies orj officials are referred to at some other places in this chapter.140 The role of State agencies in the adjudication of water rights is discussed in chapter 15, and in regard to the administration of water rights and distribution of water, in chapter 16. See also chapters 7 to 9 concerning these and other aspects of the role of State agencies regarding appropriative rights such as their role with respect to the handling of permits and licenses. Moreover, the protection of public rights and governmental interests in navigable watercourses often may involve actions taken by administrative agencies or government officials. Such rights and interests are discussed in chapter 4. The role of administrative agencies or governmental officials in some of the above regards in particular States is further discussed in the appendix, "Summaries of the State Water Rights Systems." In a 1901 case, the Colorado Supreme Court determined that a water right is an easement and an incorporeal hereditament, descendable by inheritance and a freehold estate.141 The court subsequently concluded that a water right therefore came within the meaning of the term real property, as used in the Colorado statutes. But in addition to the ordinary allegations in an action to quiet title, there were also allegations that the defendant had interefered with, and obstructed, the plaintiff in its enjoyment of the right to the use of water for purposes of irrigation. It seemed to the supreme court well settled that a court of equity, independently of the statute, had jurisdiction to restrain interference with a water right. Hence, under this doctrine the court, having acquired jurisdiction to restrain interference with plaintiffs use of the water, might properly retain jurisdiction and determine all the rights of the parties, even though plaintiff was not in actual possession. If the easement were considered by itself, wholly apart from the land on which the water was used, ejectment would not lie to recover possession. But whether in or out of possession, "plaintiff certainly can obtain appropriate relief in a court of equity against any unlawful obstruction of his rights to the enjoyment of the easement. The evidence shows legal title in plaintiff. From that flows the right 140 See, for example, "Injunction-Appropriators-Some local situations," paras. 2 to 5, infra. Paragraph 2 thereof discusses a Colorado case in which the court indicated that the Colorado statutory method for establishing priorities and the distribution of water, which makes violations thereof criminal offenses, may not afford a complete and adequate remedy for injuries to senior appropriators and injurious violations may constitute special injury that may be enjoined by a court of equity. Rogers v. Nevada Canal Co., 60 Colo. 59, 64, 151 Pac. 923 (1915). The Montana Supreme Court has indicated that the appointment of a water commissioner for an adjudicated stream under the Montana statute [Mont. Rev. Codes Ann. § 89-1001 et seq. (1964)] is a special statutory remedy that is not exclusive, but is merely cumulative. It does not prevent one whose water right has been impaired from maintaining an action for damages. Tucker v. Missoula Light &Ry. Co., 11 Mont. 91, 97-99, 250 Pac. 11 (1926). 141 Grand Valley In. Co. y.Lesher, 28 Colo. 273, 284,65 Pac. 44 (1901). |