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Show THE LAND FACTOR IN APPROPRIATING WATER 265 enactment of the water rights appropriation statute, the State supreme court agreed that this principle had been the law of the Territory since its foundation, and held that it still was the law.212 In Arizona, therefore, the appropriator of water for irrigation must be either the owner or the possessor of land susceptible of being irrigated. "Possessor" implies the following qualifications:213 (1) To make a valid appropriation of water for use on the land possessed, he must have a present intent and apparent future ability to acquire ownership of the land. A temporary possessor cannot make an appropriation. (2) As a necessary corollary, a lessee of land cannot initiate an appropriative right that inures to the benefit of his lessor. The lessor must make the appropriation. Initiation of Appropriative Right in Trespass The first appropriations of water in Utah and California were made by trespassers on the public domain, which initially belonged to Mexico and in 1848 was ceded to the United States. As discussed previously in this chapter, the Federal Government silently acquiesced in the practice; and Congress eventually enacted legislation acknowledging and confirming the water rights and rights of way of these previously technical trespassers and authorized further appropriation of water on the public lands-if made in conformity with local laws, customs, and judicial decisions. The situation with respect to private land, however, is different. The general rule is that an appropriative right initiated in trespass on private land is voidable as against the owner of the land. Some early differences.-It is true that a few decisions-none rendered in recent years-favored recognition of appropriations initiated in trespass on private land. For example, in the early case of Smith v. Logan, the Nevada Supreme Court held that one who irrigated a tract of land in connection with which he was a trespasser had validly initiated an appropriative right therefor, which he could have changed to other land when he lost possession of the original tract. According to the court, the water had not become appurtenant to the disputed tract, and the successful possessor had not connected himself with the trespasser's right to the use of the water.214 But the Nevada court later held that acts of trespass that threatened to become the foundation of a prescriptive right might be enjoined, because an intending appropriator has no right to go upon the land of another without either permission or condemna- tion for the purpose of appropriating water.215 A few years after rendition of the Nevada decision in Smith v. Logan, the California Supreme Court fully conceded that under that decision the use of 212 Tattersfield v. Putnam, 45 Ariz. 156, 168-174,41 Pac. (2d) 228 (1935). 213Id. at 171-172, 174. 214Smith v. Logan, 18 Nev. 149, 154, 1 Pac. 678 (1883). 2iiBidleman v. Short, 38 Nev. 467,471, 150 Pac. 834 (1915). |