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Show 138 PROPERTY NATURE OF WATER AND WATER RIGHTS reason for the rule that there can be no property in the corpus of the water running in a stream is not that it is dedicated to the public, but because of the fact that so long as it continues to run there cannot be that possession of it which is essential to ownership."4 The principle has been declared as a part of legislative policy as well.5 The courts have held that this principle applies not only to appropriators, who merely acquire rights to divert and use the water for the purpose of their appropriations,6 but to riparian owners as well.7 "Under either doctrine," said the Montana Supreme Court, "the corpus of running water in a natural stream is not the subject of private ownership, though this elementary principle is apparently overlooked in some of the decided cases."8 municipal water had been diverted. The South Dakota Supreme Court acknowledged that "In a certain limited sense water flowing in a natural stream belongs to the public," subject to private rights of use by riparians and appropriators: St. Germain Irrigating Ditch Co. v. Hawthorne Ditch Co., 32 S. Dak. 260, 268, 143 N. W. 124 (1913). Compare the statement in Dougan \. Board of County Commissioners, 141 Kans. 554, 562, 43 Pac. (2d) 223 (1935), that the riparian landowner owned the water in the stream just as much as he owned the bed or banks thereof. The ownership that the court was talking about probably pertained to rights of use rather than particles of water. The same question may be raised about statements in Dunsmuir v. Port Angeles Gas, Water, Electric Light & Power Co., 24 Wash. 104,114, 63 Pac. 1095 (1901), and Colburn v. Winchell, 97 Wash. 27, 29, 165 Pac. 1078 (1917), to the effect that waters of a nonnavigable stream are deemed to be a part of the soil over which they flow, particularly in view of statements in other opinions (Crook v. Hewitt, 4 Wash. 749, 31 Pac. 28 (1892), and Rigney v. Tacoma Light & Water Co., 9 Wash. 576, 583, 38 Pac. 147 (1894)) to the effect that the riparian proprietor has no property in the water itself, but a simple usufruct while it passes along. ^Palmer v. Railroad Commission, 167 Cal. 163, 168, 138 Pac. 997 (1914). 5The California Water Code § 1001 (West 1956), provides that nothing in the division relating to appropriative water rights shall be construed as giving or confirming any right in the corpus of any water. The Kansas appropriation statute provides that an appropriation of surface or ground water shall not constitute ownership of such water: Kans. Stat. Ann. § 82a-707 (1969). 6Bader Gold Min. Co. v. Oro Electric Corp., 245 Fed. 449, 451-452 (9th Cir. 1917); South Texas Water Co. v. Bieri, 247 S. W. (2d) 268, 272 (Tex. Civ. App. 1952, error refused n.r.e.). nRancho Santa Margarita v. Vail, 11 Cal. (2d) 501, 554-555, 81 Pac. (2d) 533 (1938); Crawford Co. v. Hathaway, 67 Nebr. 325, 352, 93 N. W. 781 (1903), overruled on different matters by Wasserburger v. Coffee, 180 Nebr. 147, 141 N. W. (2d) 738 (1966); In re Hood River, 114 Oreg. 112, 181, 213, 227 Pac. 1065 (1924);Redwater Land & Canal Co. v. Reed, 26 S. Dak. 466,474476,128 N. W. 702 (1910); TexasCo. v. Burkett, 117 Tex. 16, 25, 296 S. W. 273 (1927); Rigney v. Tacoma Light & Water Co., 9 Wash. 576,583, 38 Pac. 147 (1894). 8Mettler v. Ames Realty Co., 61 Mont. 152, 161-162, 201 Pac. 702 (1921). With respect to streamflow, the rights of the appropriator, "like those of a riparian owner, are strictly usufructuary." Kidd v. Laird, 15 Cal. 161, 179-180, 76 Am. Dec. 472,4 Morr. Min. Rep. 571 (1860). "Neither at common law, nor under the law of appropriation, does the proprietor or appropriator own the water in the stream." Salt Lake City v. Salt Lake City Water & Electrical Power Co., 25 Utah 456,465, 71 Pac. 1069 (1903). |