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Show 154 PROPERTY NATURE OF WATER AND WATER RIGHTS water was being distributed to the City of Helena and its inhabitants for their consumptive use must be considered personal property.85 A year later, the court attempted to explain this by saying (1) that when viewed as independent property rights, ditches and the right to use the water conveyed by them are property subject to taxation; but (2) a different situation arises when the water rights are made appurtenant to land, for they then have no independent use.86 Such an appurtenant water right is not taxable separately. Its value enters as an element into the value of the principal estate to which it is appurtenant. Hence, it bears a proportionate burden of taxation by the added taxable value which it gives to the land.87 The Montana Supreme Court has thus summed up the situation:88 The water right-a right to the use of water-while it partakes of the nature of real estate * * *, is not land in any sense, and, when considered alone and for the purpose of taxation, is personal property. * * * When considered otherwise, it is not subject to taxation independently of the land to which it is appurtenant, * * *. Riparian Right It will be noted in chapter 6, in discussing the status of the riparian doctrine in the several Western States, that with the passing of the years the practical and legal importance of this doctrine has undergone some marked changes. In some of the dual-system States, the relative importance of riparianism has progressively declined. This fact, however, does not affect the correctness of statements concerning the property nature of the riparian right that were made by the courts of such States during the time they accepted the riparian doctrine as of greater significance in their jurisdictions. Therefore, the citations in the ensuing discussion of the property nature of the riparian right are submitted as valid in the overall view of this topic, regardless of the current force or lack of force of the doctrine in the jurisdictions from which they are taken. Right of Private Property The riparian right is a right ofproperty.-An incident to the ownership of land abutting upon a stream,89 the riparian right is property within the meaning of that word.90 "It is property within the constitutional 85Helena Water Works Co. v. Settles, 37 Mont. 237, 239-240, 95 Pac. 838 (1908). 86Hale v. County of Jefferson, 39 Mont. 137, 142, 101 Pac. 973 (1909). "State ex rel. Schoonover v.Stewart, 89 Mont. 257, 273, 297 Pac. 476 (1931). 88 Verwolf v. Low Line In Co., 70 Mont. 570, 578, 227 Pac. 68 (1924);Brudy In. Co. v. Teton County, 107 Mont. 330, 333-334, 85 Pac. (2d) 350 (1938). "Benton v. Johncox, 17 Wash. 277, 281, 283, 49 Pac. 495 (1897). 90'Crawford Co. v. Hathaway, 67 Nebr. 325, 346-347, 93 N. W. 781 (1903), overruled on different matters by Wasserburger v. Coffee, 180 Nebr. 147, 141 N. W. (2d) 738 |