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Show 142 PROPERTY NATURE OF WATER AND WATER RIGHTS Texas, title to the waters of public streams is in the State in trust for the public: First, for navigation purposes; second, for the use of riparian owners; third, for users of nonriparian waters; and fourth, for other uses and benefits.21 These rights of capture and use are "water rights." Systems of administering them, whether in the executive or judicial branches of the government, take cognizance of the principle of public ownership of the flowing waters to which the rights of use attach. The right to take water from a public stream into private possession under either the doctrine of appropriation or the riparian doctrine is a strictly usufructuary right.22 Said the California Supreme Court in the landmark riparian rights case of Lux v. Haggin: "As to the nature of the right of the riparian owner in the water, by all the modern as well as ancient authorities the right in the water is usufructuary, and consists not so much in the fluid itself as in its uses, including the benefits derived from its momentum or impetus."23 From the earliest times, this usufructuary right, whether riparian or appropri- ative, has been consistently regarded and protected as property.24 Property Classification of the Water Wiel, writing in 1911, commented with disapproval on the tendency in some cases to state that flowing water in its natural state is not personal but real prop- erty-as much a part of the land over which it flows as are the soil and rocks conditions as its public policy demands. Under such circumstances, the state may reserve such a right of ownership and control of the beneficial use of the running waters of the streams as will enable it to prohibit the transmission or use thereof beyond the confines of the state." Kirk v. State Board of Irrigation, 90 Nebr. 627, 631, 134 N.W. 167(1912). The power of the State to impose reasonable limitations upon the acquisition and exercise of private water rights is generally recognized in the West. Note the handling of a "trust theory" propounded by the California Supreme Court with respect to the relation of California law to Federal reclamation law, particularly the excess land limitation provision (160 acres) in Ivanhoe Irr. Dist. v. All Parties, 47 Cal. (2d) 597, 306 Pac. (2d) 824 (1957); Ivanhoe Irr. Dist. v. McCracken, 357 U. S. 275 (1958); Ivanhoe Irr. Dist. v. All Parties and Persons, 53 Cal. (2d) 692, 350 Pac. (2d) 69, 3 Cal. Rptr. 317 (1960). 21Motl\.Boyd, 116 Tex. 82,111,286 S. W. 458 (1926). nSauve w.Abbott, 19 Fed. (2d) 619, 620 (D. Idaho 1927);Brennan v. Jones, 101 Mont. 550, 567, 55 Pac. (2d) 697 (1936); Crawford Co. v. Hathaway, 67 Nebr. 325,93 N.W. 781 (1903), overruled on different matters by Wasserburger v. Coffee, 180 Nebr. 147, 141 N.W. (2d) 738 (1966);/« re Manse Spring and Its Tributaries, 60 Nev. 280, 286, 108 Pac. (2d) 311 (1940); Snow v. Abalos, 18 N. Mex. 681, 693,694-695, 140 Pac. 1044 (1914); In re Hood River, 114 Oreg. 112, 181, 227 Pac. 1065 (1924); California-Oregon Power Co. v. Beaver Portland Cement Co., 73 Fed. (2d) 555, 567 (9th Cir. 1934); Salt Lake City v. Salt Lake City Water & Electrical Power Co., 24 Utah 249, 266, 67 Pac. 672 (1902), 25 Utah 456, 465, 71 Pac. 1069 (1903); Rigney v. Tacoma Light & Water Co., 9 Wash. 576, 583, 38 Pac. 147 (1894). 23Lux v. Haggin, 69 Cal. 255, 390, 4 Pac. 919 (1884), 10 Pac. 674 (1886). "Kidd v. Laird, 15 Cal. 161, 179-180 (1860); Fleming v.Davis, 37 Tex. 173, 201 (1872, |
