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Show 260 APPROPRIATION OF WATER The declaration in the California Civil Code, while binding the State as to its proprietary lands bordering on nonnavigable streams, does not affect lands of other persons or water rights pertaining thereto.176 The Idaho Supreme Court held that a water right may be perfected by a lessee of State land for use in connection with such land. If a water right is initiated by a lessee of private land, according to the court, the water right is the lessee's property unless he was acting as agent of the owner. There is no reason why a lessee of State land should be excepted from this privilege.177 Montana, according to its supreme court, by necessary implication assumed to itself the ownership, sub modo, of the rivers and streams of the jurisdiction. By legislation authorizing appropriation of the water-first adopted by the Territory178 and continued by the State179-Montana expressly granted the right to appropriate waters of such streams, and conferred upon anyone the right to make a valid appropriation of water on unsold State lands.180 An appropriation of water for use on State school land, leased by the irrigator from the State, was held to be not invalid because title to the land was not in the appropriator.181 Under the facts and circumstances of an Oregon case, the supreme court held that a squatter on State land who initiated a water right thereon had a right to sell his improvements and water rights to one who later acquired title to the land.182 The first Texas statute authorizing appropriation of water and providing procedure for acquiring rights of use, enacted in 1889, was applicable only to the arid regions of the State.183 This statute, the supreme court held, could not operate and probably was not intended to operate on the rights of existing owners of private riparian lands. It was intended to operate only on such interests as were in the State by reason of its ownership of riparian lands. The court concluded that the State, in authorizing appropriation of unappropriated waters of every river or natural stream in the arid areas, thereby consented to the making of such appropriations insofar as the rights of its own lands were concerned.184 Railroad Commission, 167 Cal. 163, 172, 138 Pac. 997 (1914); Hand v. Carlson, 138 Cal. App. 202, 209-210, 31 Pac. (2d) 1084 (1934). 176Duckworth v. Watsonville Water & Light Co., 170 Cal. 425,432,150 Pac. 58 (1915). 111 First Security Bank of Blackfoot v. State, 49 Idaho 740, 745-746, 291 Pac. 1064 (1930). 178Mont. Laws 1885, p. 130. 179Mont. Rev. Codes Ann. § 89-801 et seq. (1964), 180 Smith v. Denniff, 24 Mont. 20, 22, 60 Pac. 398 (1900). 181 Sayre v. Johnson, 33 Mont. 15, 20, 81 Pac. 389 (1905). 182 Campbell v. Walker, 137 Oreg. 375, 385, 2 Pac. (2d) 912 (1931). 183 Tex. Laws 1889, ch. 88. 1MMcGhee In. Ditch Co. v. Hudson, 85 Tex. 587, 591-592, 22 S.W. 398, 967 (1893). Questions of rights-of-way granted by a State over its own lands are discussed later under "Rights-of-Way for Water Control and Related Purposes." |
