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Show WATER POSSESSION BY ARTIFICIAL STRUCTURES 143 and trees-saying that the error is in assuming that it must be real or personal, when the law says it is neither and not property in any sense of the word.25 However, in a series of cases, the California courts have held uniformly that water flowing in a natural channel is real property, a part of the land.26 "That water in its natural situation upon the surface of the earth, whether as a flowing stream, as a lake or pond, or as percolations in the soil, is real property, will not be disputed."27 The concept that water of a nonnavigable stream is a part of the land over which it flows, but that it is not owned by the riparian proprietor while so flowing, can lead to confusion. In a case decided by the California Supreme Court in 1912, after stating that water flowing in a stream is real property, parcel of the riparian land and inseparably annexed to it, the court held that diversion of the water was an injury to the freehold of the riparian owner and enjoinable.28 The same result could have been reached by holding clearly that the diversion was an injury to the water right of the riparian owner and that an action would lie to quiet the landowner's title to the riparian water right as part of his real estate. Title to the riparian water right, of course, is as much entitled to protection as is title to the riparian land itself. The landowner's remedy for infringement is not strengthened by holding that the injurious diversion of the water affects the title to the water as such. The view taken by the California Supreme Court as to the real property nature of flowing water harmonizes with its holding that water diverted from streams into ditches or other conduits and delivered therefrom upon land for the irrigation thereof never loses its character as real property. This is discussed under the immediately succeeding topic. WATER REDUCED TO PHYSICAL POSSESSION BY MEANS OF ARTIFICIAL STRUCTURES Rights of Ownership of the Water Necessity of Obtaining Physical Possession of the Water As the water of a public stream while flowing in its natural channel is the property of the public (or the State, or no one), one who has a right of use military court)\Dalton v. Bowker, 8 Nev. 190, 201(1873)\Fairbury \.Fairbury Mill & Elevator Co., 123 Nebr. 588, 592, 243 N. W. 774 (1932); Atchison, Topeka & Santa Fe Ry. v. Hadley, 168 Okla. 588, 591, 35 Pac. (2d) 463 (1934); St. Germain Irrigating Ditch Co. v. Hawthorne Ditch Co., 32 S. Dak. 260, 267.143 N. W. 124 (1913). 25 Wiel, supra note 15 § 696 and n. 7, p. 766. 26 Undoubtedly real property: Fudickar v. East Riverside In. Dist., 109 Cal. 29, 36, 41 Pac. 1024(1895). "Stanislaus Water Co. v. Bachman, 152 Cal. 716, 725,93 Pac. 858 (1908). See Copeland v.FairviewLand& Water Co., 165 Cal. 148,154,131 Pac. 119 (1913). 2*Shurtleff\. Bracken, 163 Cal. 24, 26,124 Pac. 724 (1912). "The facts stated constitute a good cause of action to quiet the plaintiffs title to the water, as a part of his real estate, and to enjoin the threatened diversion." |