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Show 15 2 PROPERTY NATURE OF WATER AND WATER RIGHTS Valuable property. -Not only is the appropriative right property-it is valuable property.70 In an early case, it was termed "a substantive and valuable property."71 In a recent one, "a property right of high order."72 Real Property: The General Rule The appropriative right is real property.-In 1894, the Wyoming Supreme Court said: Thus it seems that the doctrine is very general in the states of the arid region that a water right becomes appurtenant to the land upon which the water is used, and the ditch, water-pipe, or other conduit for the water, becomes attached to the land either as appurtenant, or incident to the land and necessary to its beneficial enjoyment, and therefore becomes part and parcel of the realty.73 In one of its earliest water rights decisions, the California Supreme Court held that the right of prior appropriation and use of water "has none of the characteristics of mere personalty."74 The rule that the appropriative right is an interest in real property is recognized generally throughout the West.75 (The Montana rule is noted below.) Mexico Power Co., 42 N. Mex. 311, 321, 77 Pac. (2d) 634 (1937); In re Scholl- meyer, 69 Oreg. 210, 215, 138 Pac. 211 (1914); Clark v. Briscoe In. Co., 200 S. W. (2d) 674, 679 (Tex. Civ. App., 1947); In re Bear River Drainage Area, 2 Utah (2d)' 208, 211, 271 Pac. (2d) 846 (1954). Merrill v. Bishop, 74 Wyo. 298, 312-313, 287 Pac. (2d) 620 (1955). 70Reno v. Richards, 32 Idaho 1, 15, 178 Pac. 81 (1918); In re Barber Creek and Its Tributaries (Scossa v. Church), 46 Nev. 254, 262, 205 Pac. 518, 210 Pac. 563 (1922); In re Willow Creek, 74 Oreg. 592, 616-617, 144 Pac. 505 (1914), 146 Pac. 475 (1915); Hammond v. Johnson, 94 Utah 20, 27-28, 66 Pac. (2d) 894 (1937). 71 McDonald v. Bear River & Auburn Water & Min. Co., 13 Cal. 220, 232 (1859) "Posey v. Dove, 57 N. Mex. 200, 210, 257 Pac. (2d) 541 (1953). In Arizona, "It is common knowledge that the value of land requiring irrigation consists principally in the water supply." Ramirez v. Electrical Dist. No. 4, 37 Ariz. 360, 363, 294 Pac. 614 (1930). In Montana, the value of a water right was held to be a proper item of value to be considered in fixing the rates of a public utility for the sale of power, inasmuch as it was a part of the production system of the utility company: Tobacco River Power Co. v. Public Service Commission, 109 Mont. 521, 532, 98 Pac. (2d) 886 (1940). 73 Frank v. Hicks, 4 Wyo. 502, 531, 35 Pac. 475 (1894). 74Hill v. Newman, 5 Cal. 445, 446 (1855). More recently: "An appropriative right constitutes an interest in realty." Wright v. Best, 19 Cal. (2d) 368, 382, 121 Pac. (2d) 702 (1942). lsComstock v. Olney Springs Drainage Dist., 97 Colo. 416,419, 50 Pac. (2d) 531 (1935); In re Robinson, 61 Idaho 462, 469, 103 Pac. (2d) 693 (1940); Nenzel v. Rochester Silver Corp., 50 Nev. 352, 357, 259 Pac. 632 (1927); Posey v.Dove, 57 N. Mex. 200, 210, 257 Pac. (2d) 541 (1953); Oviatt v. Big Four Min. Co., 39 Oreg. 118, 122,65 Pac. 811 (1901); Goodwin v. Hidalgo County W. C. & I. D. No. I, 58 S. W. (2d) 1092, 1094 (Tex. Civ. App. 1933, error dismissed); In re Bear River Drainage Dist., 2 Utah (2d) 208, 211, 271 Pac. (2d) 846 (1954); Madison v.McNeal, 171 Wash. 669,675, 19 Pac. (2d) 97 (1933). An appropriative right appurtenant to the realty in connection with which the use of the water is applied "savors of, and is a part of, the realty itself." |
