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Show WATER RIGHTS 151 Approval of the California rule by a Texas court.-In deciding questions relating to the property nature of a right to use water from an irrigation canal, the San Antonio Court of Civil Appeals quoted with approval from Stanislaus Water Company v. Bachman6S to the effect that water while in canals for irrigation purposes is real property.66 Some further points included in the quotation are that the right in such water is real property, and that the right of a landowner to use part of such water is a servitude on the canal and is real property. WATER RIGHTS Usufructuary Right A water right is a right to the use of water, accorded by law.67 Whether appropriative or riparian, the right that attaches to the flow of a natural watercourse is not an ownership of the corpus of the flowing water. (See "Water Flowing in Natural Stream-Rights of Ownership of the Water," above.) As the above definition states, it is a right to the use of the water-a usufructuary right. The property nature of appropriative and riparian rights is discussed further in chapters 8 and 10. Appropriative Right Right of Private Property The appropriative right is a species of property. -At the beginning of the development of water law in California-in the earliest years of statehood-it was established that the right which an appropriator gains is a private property right, subject to ownership and disposition by him as in the case of other kinds of private property.68 This view of the property nature of the appropriative right has been consistently taken by the western courts that have had occasion to pass upon or to discuss it.69 "Stanislaus Water Co. v.Bachman, 152 Cal. 716,93 Pac. 858 (1908). 66Mudge \. Hughes, 212 S. W. 819, 823-824 (Tex. Civ. App. 1919). "National Reclamation Association, "Desirable Principles of State Water Legislation," p. 2(1946). 6*Thayer v. California Development Co., 164 Cal. 117, 125, 128 Pac. 21 (1912). See Tartar v. Spring Creek Water & Min. Co., 5 Cal. 395, 399 (1855);Hoffman v. Stone, 7 Cal. 46,49 (1857). 69 See, for example, Denver v. Sheriff, 105 Colo. 193, 199, 96 Pac. (2d) 836 (1939); Payette Lakes Protective Assn. v. Lake Res. Co., 68 Idaho 111, 122, 189 Pac. (2d) 1009 (1948); Lindsay v. McClure, 136 Fed. (2d) 65, 70 (10th Cir. 1943); Osnes Livestock Co. v. Warren, 103 Mont. 284, 294, 62 Pac. (2d) 206 (1936); Crawford Co. v. Hathaway, 67 Nebr. 325, 356, 93 N. W. 781 (1903), overruled on different matters by Wasserburger v. Coffee, 180 Nebr. 147, 141 N. W. (2d) 738 (1966); Application of Filippini, 66 Nev. 17, 22, 202 Pac. (2d) 535 (1949);Ateu> Mexico Products Co. v.New |
