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Show 144 PROPERTY NATURE OF WATER AND WATER RIGHTS therein does not become the owner of the body of the water to which his right attaches until he has acquired control of it in conduits or reservoirs constructed by artificial means.29 As said by the Utah Supreme Court in 1902;30 Nor has the city, by virtue of its appropriation, acquired a right to the corpus of the water in the lake or river. Not until the water is conducted into its canal does the corpus belong to the city. * * * To obtain a usufructuary interest in the streamflow to which his claimed water right attaches, the claimant must actually lay hold of whatever quantity of water is required for his proposed use.31 This involves a diversion of the water whereby the claimant is enabled thereafter to assert absolute control over it, and an actual application of the water to some beneficial purpose. The Kansas Supreme Court held that one who had acquired by prescription water power rights in a river-but who had not withdrawn the water from the river and reduced it to possession, nor taken any steps that had changed the character of the water and given him a property right in it-had no title to the water in the river, no right to sell the water, and no right to recover the sale price of water taken from the river.32 To meet the need of obtaining physical possession of the water, valid rights of use, or water rights, are essential. The subject thus merges into that of requirements that pertain to water rights, discussed below. Private Rights of Ownership of the Water Upon severance from the streamflow, water generally becomes private property. -The general rule is that one who diverts water from a natural stream pursuant to a valid right of diversion and use becomes the owner of the particles of water. The general rule has been stated affirmatively by some courts, as noted below under "Property Classification of the Water." Some other courts have handled the proposition in a negative way,33 or with caution.34 Still others 29Parks Canal & Min. Co. v.Hoyt, 57 Cal. 44,46 (1880), cited with approval in Riverside Water Co. v. Gage, 89 Cal. 410, 418, 26 Pac. 889 (l891);Bader Gold Min. Co. v. Oro Electric Corp., 245 Fed. 449,451452 (9th Cir. 1917). 30 Salt Lake City v. Salt Lake City Water & Electric Power Co., 24 Utah 249, 266, 67 Pac. 672 (1902). 31Nevada Ditch Co. v. Bennett, 30 Oreg. 59, 89, 45 Pac. 472 (1896). "Granting that plaintiff does not own the corpus of the water until it shall enter its ditch, yet the right to have it flow into the ditch appertains to the ditch." [Emphasis supplied.] Lakeside In. Co. v. Markham In. Co., 116 Tex. 65, 76-77, 285 S. W. 593 (1926). 32 Wallace v. Winfield, 98 Kans. 651, 653-654, 159 Pac. 11 (1916). Having acquired no ownership in the water, the extent of the recovery, by the holder of presciptive rights, for deprivation of use of the water was reasonable damages for the injury thus sustained. 33 For example, appropriated water never becomes the property of any appropriator until reduced to possession in his own ditch: Bader Gold Min. Co. v. Oro Electric Corp., 245 Fed. 449, 452 (9th Cir. 1917). 34 For the purpose of the decision, "it may be admitted" that the water "becomes, after it has passed into the ditch, the personal property of the appropriator." Parks Canal & |
