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Show WATER FLOWING IN NATURAL STREAM 139 No Private Ownership: Some Real or Apparent Contradictions It is true, as the Montana Supreme Court observed above,9 that some courts have stated real or apparent exceptions to the general rule that the corpus of running water in a natural stream is not the subject of private ownership. The Kansas Supreme Court said in 1935 that certain landowners owned the water in the navigable water course to which their lands were riparian "just as much and under the same rights as they own the bed of the stream, or the banks, or the trees thereon."10 However, a reading of the entire passage from which this was taken suggests that the statement was directed to ownership of the right to use the water, rather than title to the particles of the water themselves. The same comment may be offered about two opinions of the Washington Supreme Court to the effect that waters of a nonnavigable stream are deemed to be a part of the soil over which they flow.11 This is particularly so in view of the statements in other opinions of this court to the effect that the riparian proprietor has no property in the water itself, but a simple usufruct while it passes along.12 Even in California, where the general rule of nonprivate ownership of particles of running water has been so long and apparently so well established, two examples of apparent nonconformity may be noted. In one case, the supreme court held that the plaintiff had stated facts constituting a good cause of action to quiet title to the stream water "as part of his real estate," such flowing water being "parcel of the riparian land, inseparably annexed to it."13 As noted below under "Water Reduced to Physical Possession by Means of Artificial Structures-Property Classification of the Water," the same result could have been reached by allowing the injunction for injury to the plaintiffs riparian water right, rather than to his title to the water as part of his riparian land. In the other California case, the principal question was whether an artificial addition to the flow of a natural stream-"foreign water" originating in another watershed-inured to the benefit of owners of land riparian thereto, or was merely "in the nature of abandoned personalty" which might be appropriated by the first person who could take it from the stream.14 The supreme court 9\nMettler v. Ames Realty Co., 61 Mont. 152, 161-162, 201 Pac. 702 (1921). l*Dougan v. Board of County Commissioners, 141 Kans. 554, 562, 43 Pac. (2d) 223 (1935). nDunsmuir v. Port Angeles Gas, Water, Electric Light & Power Co., 24 Wash. 104, 114, 63 Pac. 1095 (l901);Colburn v. Winchell, 97 Wash. 27, 29,165 Pac. 1078 (1917). 12Crook v. Hewitt, 4 Wash. 749, 31 Pac. 28 (1892);Rigney v. Tacoma Light & Water Co., 9 Wash. 576,583, 38 Pac. 147 (1894). 13Shurtleffv. Bracken, 163 Cal. 24, 26,124 Pac. 724 (1912). 1AE. Clemens Horst Co. v. New Blue PointMin. Co., Ill Cal. 631, 637-640,171 Pac. 417 (1918). |
