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Show 266 APPROPRIATION OF WATER the water by a trespasser on private land does not make such water ap- purtenant to such land. But, the court stated, "it does not follow from this that the use of water upon land to which it is already appurtenant, by one who is a trespasser thereon, will give him such a right in the water as that he may thereafter divert it from the land, or upon being ejected therefrom, convey to a stranger a legal title in the water or in the use thereof."216 In 1910, the Utah Supreme Court rejected the concept of a necessary relationship between the right to use spring water on the public domain and "some right or title in and to" the lands around the spring or on which the water was applied. The court observed that the authorities sanction a rule that even a trespasser on land may acquire the exclusive right to the use of water used thereon; that when once acquired, such a right is paramount to the rights of the true owner or claimant of the land; and that when the water claimant is dispossessed of the land, he may divert and use the water elsewhere.217 Some 40 years later, this court noted that the question had not been settled in Utah. The court stated that had one of the parties dehberately gone on another's land to make an appropriation of water, knowing that he was committing a trespass, "it might well be that such trespass would nullify his right to appropriate this water." However, the parties here had stipulated that defendant believed the area to be Government land.218 While making no decision on the point in the latter case, because under the circumstances none was called for, the more mature view of the Utah court is therefore opposed to giving an appropriator who deliberately trespasses on private land this advantage. Supreme courts of other Western States that have expressed themselves on this matter agree with Utah. However, there are differences in the extent of the penalty thus imposed. Voidability as against the owner of land trespassed upon. -In some court opinions, it is stated broadly that a valid water right cannot be initiated by trespass on private land;219 or that a permit to appropriate water cannot be acquired through such trespass;220 or that one who appropriated water under the statutory procedure but who made the diversion on another's land by trespass thereon had no interest in or to such water by virtue of certificates of water right issued by the State Engineer.221 There are, however, situations in 216Alta Land & Water Co. v. Hancock, 85 Cal. 219, 228-229, 24 Pac. 645 (1890). This case had to do with trespass on private riparian land. The court held that nothing was acquired by conveyances from the trespassers during pendency of the ejectment suit, for they had nothing to convey. Nothing was taken from the rights of the riparian owners by the trespassers' acts. 211 Patterson v.Ryan, 37 Utah 410, 415, 108 Pac. 1118 (1910). 21*Riordan v. Westwood, 115 Utah 215, 232-233, 203 Pac. (2d) 922 (1949). 219 Geary v. Harper, 92 Mont. 242, 251, 12 Pac. (2d) 276 (1932). 220 Idaho Power Co. v.Buhl, 62 Idaho 351, 357, 111 Pac. (2d) 1088 (1941). 22iMinton v. Coast Property Corp., 151 Oreg. 208-209, 217-218, 46 Pac. (2d) 1029 (1935). |