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Show Chapter 5 PROPERTY NATURE OF WATER AND WATER RIGHTS PERTAINING TO WATERCOURSES WATER FLOWING IN NATURAL STREAM Rights of Ownership of the Water No Private Ownership: The General Rule Water flowing in a natural stream is not the subject of private ownership. Private rights that attach thereto-whether appropriative or riparian-are strictly usufructuary rights to take the water from the stream into physical possession for the purpose of putting it to beneficial use. This, in western water law-despite the existence of some real or apparent exceptions, noted below-is a very old and well-established principle. In its earliest decision as between conflicting claims of rights to the use of water, the California Supreme Court observed that the right of property in water flowing in a stream is not in the corpus of the water, but is usufructuary and continues only with its possession.1 It has been noted in chapter 1, "State Water Policies," under "Declarations of Policy-Ownership of Water Supplies", that in various Western States there are constitutional and statutory declarations and judicial acknowledgments that waters within their boundaries belong to the public or to the State. Whether, in a given jurisdiction, natural stream waters are regarded as the property of the sovereign or of the public, or whether there has been no authoritative pronouncement therein as to who "owns" the flowing waters or whether they belong to no one, it is a widely recognized principle-and an elementary one2 -that private rights of ownership do not attach to the corpus of the water so long as it remains in the stream in its natural state.3 "The true xEddy v. Simpson, 3 Cal. 249, 252, 58 Am. Dec. 408, 15 Morr. Min. Rep. 175 (1853). iCuster v.MissoulaPublic Service Co., 91 Mont. 136, 142, 6 Pac. (2d) 131 (1931). 3Maricopa County M.W.C. Dist. v. Southwest Cotton Co., 39 Ariz. 65, 73, 4 Pac. (2d) 369 (1931); Albrethsen v. Wood River Land Co., 40 Idaho 49, 59-60, 231 Pac. 418 (1924); Wallace v. Winfield, 98 Kans. 651, 653-654, 159 Pac. 11 (1916); Meng v. Coffee, 67 Nebr. 500, 504, 93 N. W. 713 (1903); Application of Filippini, 66 Nev. 17, 21-22, 202 Pac. (2d) 535 (1949); Albuquerque Land & In. Co. v. Gutierrez, 10 N. Mex. 177, 236-237, 61 Pac. 357 {19QQ); Nevada Ditch Co. v. Bennett, 30 Oreg. 59, 89, 45 Pac. 472 (1896); Haas v. Choussard, 17 Tex. 588, 589 (1856); Adams v. Portage Irr., Res. & Power Co., 95 Utah 1, 12, 72 Pac. (2d) 648 (1937); Johnston v. Little Horse Creek Irrigating Co., 13 Wyo. 208, 227-228, 79 Pac. 22 (1904). In Pulaski Irrigating Ditch Co. v. Trinidad, 70 Colo. 565, 568-570, 203 Pac. 681 (1922), and Wyoming Hereford Ranch v. Hammond Packing Co., 33 Wyo. 14,4244, 236 Pac. 764 (1925), the principle was applied to sewage discharged into the stream from which the (137) |
