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Show THE LAND FACTOR IN APPROPRIATING WATER 267 which the gravamen of the complaint is injury to the owner of the land that is trespassed upon. Hence arises a different rule that such an appropriation is void as against the landowner. The term "void" when used in this connection means no more than "voidable" when the landowner has the right to grant an easement.222 Or even where a water right initiated in trespass is held invalid, a vested appropriative right exercised by committing a trespass is not necessarily void, even though it may not be asserted as against the owner of the land trespassed upon.223 The Washington Supreme Court acknowledged what might be a general rule that a valid appropriation cannot be so initiated, and that no rights can be obtained against the landowner. But the court could find no authority indicating that a technical trespass by posting notices of appropriation would render them unavailing to the appropriator where the water sought to be appropriated was neither flowing upon nor riparian to the land in question.224 The Idaho Supreme Court held that a permit issued by the State was of no force or effect where the applicant had trespassed on private land in obtaining data needed in making his appropriation.225 In a case decided in 1931, however, the necessary data were obtained by means of a triangulation survey of the site of the contemplated diversion and right-of-way, made from a highway without entering upon the private property. Under these circum- stances, the court held that this intending appropriator had a lawful right to apply for a permit, and that the permit issued on his application was lawful.226 This decision was approved in a later case in which the supreme court said that trespass, in order to invalidate the appropriation, must be physical, not merely mental227 Purposes of trespassing upon the land.-In the foregoing cases, the trespass upon private land was made for one or both of two purposes-one to obtain data required for an application to appropriate water; the other to construct a •stream diversion and a ditch leading from the stream over the abutting and intervening land to the place of intended use. Where the State law authorized an intending appropriator to condemn a right-of-way across private land for the purpose of obtaining data, as was 222Scherck v. Nichols, 55 Wyo. 4, 13-14 95 Pac. (2d) 74 (1939). In this case the landowner had not complained, but on the contrary the present owner stipulated that the water was being diverted with her consent. Hence a third party was not the one to object. 223OsnesLivestock Co. v. Warren, 103 Mont. 284, 295, 62 Pac. (2d) 206 (1936). ™State ex rel. Ham, Yearsley & Ryrie v. Superior Court, 70 Wash. 442, 464-466, 126 Pac. 945 (1912). 225Marshall v. Niagara Springs Orchard Co., 22 Idaho 144, 153-158, 125 Pac. 208 (1912). 226Bassett v. Swenson, 51 Idaho 256, 259-262, 5 Pac. (2d) 722 (1931). In this action, the plaintiff was seeking the right to enter the property of the defendants in order to effectuate the diversion authorized by his permit. The right of condemnation therefor was upheld. 227 Idaho Power Co. v.Buhl, 62 Idaho 351,357-358, 111 Pac. (2d) 1088 (1941). |
