OCR Text |
Show 268 APPROPRIATION OF WATER suggested in one of the Idaho cases,228 as well as for the purpose of acquiring an easement in the land and constructing physical works for handling the water, the intending appropriator's legal course is clear enough. In many western jurisdictions, natural persons may condemn rights-of-way over other lands in order to effectuate appropriations of water (see "Rights-of-way for Water Control and Related Purposes," below). Barring agreement with the landowner, this appears to be the only practicable way of initiating an appropriation of public unappropriated water on privately owned land in a State in which the validity of a permit depends upon its having been obtained without committing trespass. If the intending appropriator should go upon another's land, make surveys, build a diversion headgate, and dig a ditch across the land without the owner's permission and without any other formality, but with no interruption for the period of the statute of limitations-and if all the necessary elements of prescription are proved-the trespasser may then have legal title to the right-of-way and to the physical works. Under the Idaho Law he could then initiate his appropriation of the water, there being no further trespass-but not before then. But if the State rule were that the appropriation even though initiated in trespass is voidable only as against the landowner and only at his instigation, the appropriative process presumably could begin during the statutory prescriptive period, subject to interruption only if the landowner objects before the period expires. This, however, is subject to the willingness of the State administrative agency to accept an application for a permit from a person who does not have access to the source of supply of water. There are State administrators who are not willing to do so. For example, the rules and regulations of the California Water Resources Control Board contain several sections relating to the intending appropriator's right of access, among which are: If it is necessary for an applicant to occupy private property or to use existing works which he does not own, he must secure the necessary right of access. If the proposed project will require a permit, license, or approval of a Federal agency or officer, such consent is necessary to approval of the application. And if the applicant does not own the land at the point of diversion, he must give the name and address of the owner and state what steps have been taken to secure right of access thereto.229 The Texas Water Rights Commission requires, where the applicant does not have the power of condemnation and proposes to place any installation on the land ^Marshall v. Niagara Springs Orchard Co., 22 Idaho 144, 153, 125 Pac. 208 (1912). The court stated that the right to enter the land in question for the purpose of investigating, inspecting, and making surveys, plans, and specifications for the purpose of making application for a permit to appropriate the water, should have been obtained from the landowner "either by an agreement of the parties, or by condemnation proceedings, and without such remedy being pursued, the respondent in making such entry would be a trespasser." 229Cal. Admin. Code, tit. 23, § § 670(s), and 747 to 749 (1969). |