OCR Text |
Show 146 PROPERTY NATURE OF WATER AND WATER RIGHTS According to the Supreme Court of Arizona:39 Water, being public property in a running stream, continues to be public property even when diverted for beneficial uses, and remains such until actually applied to such uses. Our statutes do not recognize the right of ownership of water, as distinct from its use or application. In determining a question of ownership of water for rate-making purposes, the Colorado Supreme Court held that:40 Neither the carrier nor the landowner owns the water diverted from the natural stream. They have only the use thereof under regulations prescribed by the state. Ownership of the water of natural streams still remains with the state. Its use by the carrier and landowner under the ditch is by permission of the state. * * * Although the New Mexico Supreme Court has held to the general rule that water that is reduced to possession by artificial means becomes personal property,41 the private property of those entitled to its use,42 an exceptional situation was the subject of a decision rendered in 1945.43 The question involved in this case was whether the public, when properly authorized by the State Game Commission, could participate in fishing and other recreational activities with respect to waters impounded by a dam across the channel of a public stream, access to the waters of which could be had without trespassing upon private property. The capacity of the reservoir was some 600,000 acre-feet of water, of which part was designed for downstream irrigation, about 100,000 acre-feet was classified as dead storage, and some was impounded for flood control, to be released as waste water as the occasion should demand. The supreme court held that the entire quantity in storage was public water until beneficially applied to the purposes for which its presence afforded a potential use; and as to some of the storage, it was not contemplated that application to beneficial use in New Mexico would be made at all. To constitute an appropriation, said the court, there must be a diversion and application to beneficial use, consequently these artificially impounded waters were not appropriated in advance of their application to use. Accordingly, not only before being stored but also while impounded by the dam, these were public waters, and the organization that impounded them had no exclusive 39Slosser v. Salt River Valley Canal Co., 7 Ariz. 376, 390, 65 Pac. 332 (1901). See also Gould v.Maricopa Canal Co., 8 Ariz. 429, 446-447, 76 Pac. 598 (1904). 40Northern Colorado In. Co. v. Board of Commissioners of Arapahoe County, 95 Colo. 555, 567, 38 Pac. (2d) 889 (1934). See also the much earlier case of Wright v.Platte Valley In. Co., 27 Colo. 322, 329, 61 Pac. 603 (1900). "Hagerman In. Co. v.McMurry, 16 N. Mex. 172, 180, 113 Pac. 823 (1911). "SeeSnowv.Abalos, 18 N. Mex. 681, 695, 140 Pac. 1044(1914). 43State ex rel. State Game Commission v. Red River Valley Co., 51 N. Mex. 207, 223-229, 182 Pac. (2d) 421 (1945). |