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Show WATER POSSESSION BY ARTIFICIAL STRUCTURES 147 privilege in their use while they remained public and no right of recreation or fishery distinct from the right of the general public therein. Property Classification of the Water Granting that water lawfully diverted from a public stream pursuant to a valid right of diversion and use becomes private property, how is it classified from standpoints of sale, theft, or taxation? The General Rule The high courts of most Western States hold that water lawfully diverted from its natural course and reduced to possession by means of artificial devices becomes the personal property of the appropriator or riparian owner who takes this action. "As a general principle of law," said the Washington Supreme Court, "water, after it has been diverted from a natural stream and taken into a reservoir and distributing pipes, takes the character of personal property, the ownership of which rests in the appropriator, although some authorities make exceptions."44 Some examples of the circumstances under which this conclusion has been reached are as follows: In a Kansas case decided in 1900, it was held that as the water flowing in a navigable stream was not a part of the riparian owner's estate, his possessory right to the water accumulated by a dam built to impound the water was in a sense a reducing of personal property to possession, much like the collection of a crop of ice.4s Hence, transfer of the water or ice so accumulated was not required to be made by deed. The New Mexico Supreme Court held in 1911 that water impounded and reduced to possession and control becomes personal property.46 As such, it may be made the subject of purchase and sale, or of larceny. It makes no difference in that respect, said the court, whether the captured fluid is held in a skin or cask, by an itinerant water vendor, or in the pipes of a modern aqueduct company. Much more recently, however, as noted above (under "Rights of Ownership of the Water-Private Rights of Ownership of the Water-Some exceptions to the general rule"), the same court has held that there must be a diversion and application of water to a beneficial use to constitute an appropriation; that the water of a perennial stream remained public water after the construction of a dam across the channel of the stream by means of which a large volume of water had been artificially impounded for irrigation purposes and for flood control, part being classified as dead storage; "Madison v.McNeal, 171 Wash. 669, 674,19 Pac. (2d) 97 (1933). 4S Johnston v. Bowersock, 62 Kans. 148,161-162, 61 Pac. 740 (1900). It had been held in Wood v. Fowler, 26 Kans. 682, 689-690,40 Am. Rep. 330 (1882), that the waters of a navigable stream belong to the public, not to the owner of the adjacent riparian land. The riparian has no more ownership in the ice formed on the surface of the river than he would have to the fish that swim in the stream. 46Hagerman In. Co. w.McMurry, 16 N. Mex. 172,180, 113 Pac. 823 (1911). |