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Show 262 APPROPRIATION OF WATER soil for agricultural purposes.187 Montana followed suit in 1865,188 and Wyoming in 1875.189 The Territory of Dakota enacted a similar declaration in 1881.19° These four Territorial statutes were not identical in wording-such as items including both grantees and holders of possessory title and recognition of pre-existing rights. But they were alike in relating the water right to land holdings or claims contiguous to or in the neighborhood of streams. The Washington State statute of 1890 provided that a person holding a possessory right to land in the vicinity of a natural stream or lake, but not abutting thereon, might take unappropriated water therefrom.191 As against a claim of riparian right under the Wyoming statute, the State supreme court held that the statute did not refer to riparian owners only, but extended to all those who claimed land in the neighborhood of a stream.192 In commenting on this statute, Wyoming's first State Engineer, Elwood Mead, emphasized that it made the ownership of land rather than the construction of ditches the foundation of the water right.193 The early California cases were decided before the Congressional statutes were enacted. They emphasized that the right to running water existed "without private ownership of the soil-upon the ground of prior location upon the land, or prior appropriation and use of the water."194 The California courts continued to hold to this principle.195 The Colorado Supreme Court held it unnecessary to determine whether predecessors of plaintiffs, who claimed water rights, held title to the land in fee simple. "It is sufficient, in order to perfect an appropriation to the right to use of water, if they had only an uncompleted or unfinished title. This right they could have acquired separate and apart from the land."196 Elsewhere in the West, the high courts hold to the view that a fee simple title to the land used is not necessary to the validity of an appropriation of water, but many of them require at least a possessory claim. The chief differences are as to what constitutes a possessor for such purpose. The overall situation can be best illustrated by some State examples, as follows. I87Colo.Lawsl861,p. 67. 188 Bannack Stat., p. 367 (1865). 89 Wyo. Comp. Laws, ch. 65 (1876). 90 Terr. Dak. Laws 1881, ch. 142. 91 Wash. Laws 1889-90, ch. 21, § § 7 and 8. 92 Moyer \. Preston, 6 Wyo. 308, 318-320,44 Pac. 845 (1896). 93 Mead, Elwood, "Irrigation Institutions," p. 248 (1903). "Hill v. Newman, 5 Cal. 445, 446 (1855). See also Crandall v. Woods, 8 Cal. 136, 142 (1857);///// v.King, 8 Cal. 336, 338 (1857). 195Forty years later, in Santa Paula Water Works v. Peralta, 113 Cal. 38, 43, 45 Pac. 168 (1896), the court held that title or the right to acquire title in the place of intended use has never been a necessary element of the right to appropriate water in California. See Joerger v. Pacific Gas & Electric Co., 207 Cal. 8, 34, 276 Pac. 1017 (1929). 196Kountz v. Olson, 94 Colo. 186, 191, 29 Pac. (2d) 627 (1934). |
