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Show WATER RIGHTS 153 Quiet title actions.- As a corollary, an action to quiet title to an appropriative right and to establish the right to divert and use the water is in the nature of an action to quiet title to real estate.76 Hence, said the Texas Supreme Court, the quiet title suit must be brought in the jurisdiction in which the land is located.77 And in such an action, according to the Supreme Court of Idaho, one must rely upon the strength of his own title to establish his claimed right, not upon the weakness of that of his adversary.78 Furthermore, according to the Idaho Supreme Court, questions of ownership of water rights cannot be litigated in a mandamus proceeding.79 The Montana Supreme Court has held at least twice with respect to water rights adjudications, title to a substantive property right of this kind cannot be adjudicated through the medium of a contempt proceeding.80 The Nevada Supreme Court held to the same effect: "Such a right cannot be adjudicated incidentally to a pro- ceeding in which the adjudication of such right is not the main question involved; and specifically, it cannot be adjudicated in a contempt pro- ceeding."81 Real Property: The Montana Rule Applicability of the general rule in Montana.-The Montana Supreme Court follows the general rule to this extent: (1) It acknowledges that the appropriative right, although "not land in any sense,"82 partakes of the nature of real estate insofar as a conveyance of the usufruct is concerned.83 (2) An action to ascertain, determine, and decree the extent and priority of the usufructuary right partakes of the nature of an action to quiet title to real estate.84 The Montana rule with respect to taxation.-In 1908, the Supreme Court of Montana held that for purposes of taxation, an appropriative right under which Rickey Land & Cattle Co. v. Miller & Lux, 152 Fed. 11, 15 (9th Cir. 1907). A water right perfected by appropriation and beneficial use of water "constitutes realty in the nature of a possessory right." Knapp v. Colorado River Water Conservation Dist., 131 Colo. 42, 52-53, 279 Pac. (2d) 420 (1955). See Kans. Stat. Ann. § 82a-701 (g) (1969). 16Rickey Land & Cattle Co. v. Miller & Lux, 152 Fed. 11, 14, 15 (9th Cir. 1907); Pecos Valley Artesian Conservancy Dist. v. Peters, 52 N. Mex. 148, 154, 193 Pac. (2d) 418 (1948); Hammond v. Johnson, 94 Utah 20, 27-28, 66 Pac. (2d) 894 (1931 );Hunziker v.Knowlton, 78 Wyo. 254, 255-256, 324 Pac. (2d) 266 (1958). "Lakeside Irr. Co. v.Markham Irr. Co., 116 Tex. 65, 74-75, 285 S. W. 593 (1926). nHarris v. Chapman, 51 Idaho 283, 293, 5 Pac. (2d) 733 (1931). "Nampa & Meridian Irr. Dist. v. Welsh, 52 Idaho 279, 283-285, 15 Pac. (2d) 617 (1932). *°State ex rel. Zosel v. District Court, 56 Mont. 578, 581, 185 Pac. 1112 (1919); State ex rel. Reeder v. District Court, 100 Mont. 376, 380,47 Pac. (2d) 653 (1935). 81/« re Barber Creek and Its Tributaries (Scossa v. Church), 46 Nev. 254, 260, 262, 205 Pac. 518, 210 Pac. 563 (1922). 82 Verwolfv. Low Line Irr. Co., 70 Mont. 570, 578, 227 Pac. 68 (1924). ^Middle Creek Ditch Co. v. Henry, 15 Mont. 558,572, 39 Pac. 1054 (1895). "Whitcomb v. Murphy, 94 Mont. 562,566, 23 Pac. (2d) 980 (1933). |