OCR Text |
Show WHO MAY APPROPRIATE WATER 23 9 course to authorizations, safeguards, and limitations of the enabling statutes. If a particular supply of unappropriated water is available, any member of the public may appropriate it. The original thinking on this is exemplified by the Utah Supreme Court's statements in its second reported decision on rights to the use of water, rendered long before statutory procedure for making appropriations of water in the Territory had been enacted. The court said that if appellants failed to appropaiate the water in litigation, "any stranger could appropriate it," whether or not a member of the local irrigation company; that "This is a free country, * * * and the appropriation of water is open to all."69 In more recent years, as noted later,70 the legislative tendency through- out the West has been to authorize qualified applicants to appropriate unappropriated water only if certain prerequisites relating to the public welfare are met. Natural person, organization, public entity. -Nearly all the statutes refer unqualifiedly either to "any person" or to "every person" as a potential appropriator. Utah requires that such person be a citizen of the United States or one who has filed his declaration of intention to become a citizen.71 Nevada's specification in this particular is any person, or any citizen of the United States, or any person who has legally declared his intention to become such, "over the age of 21 years."72 In an early case, the Montana Supreme Court held that an alien could acquire title to a ditch and water right, "and hold the same until office found, against collateral attacks by third persons other than the sovereign," and "in the absence of forfeiture by office found, may convey title to his grantee."73 In a still earlier case, the Nevada Supreme Court recognized the right of an Indian to appropriate water on the public lands of the United States and to maintain an action for the diversion of such water against his interests.74 These western statutory references to qualifications of appropriators are in the form of specific authorizations to persons and other named groups or organizations or entities to appropriate water pursuant to the instant legislation. They are not in the form of a specific mandate that the privileges in question may not be equally enjoyed by others not literally named. The authorization to "persons" to appropriate water is not confined to natural persons. The term is broader than this. Either expressly or by necessary implication, other classes of potential appropriators with certain rights and responsibilities are recognized. For example, in the Arizona statute the word "Munroe v.Ivie, 2 Utah 535, 537-538 (1880). 70See "Methods of Appropriating Water of Watercourses-Restrictions and Preferences in Appropriation of Water-Restrictions on the Right to Appropriate Water." "Utah Code Ann. § 73-3-2 (Supp. 1969). 72Nev. Rev. Stat. § § 533.010 (Supp. 1969) and 533.325 (Supp. 1967). ™Quigley v. Birdseye, 11 Mont. 439, 445-446, 28 Pac. 741 (1892). ™Lobdell\.Hall 3 Nev. 507 (1868). |