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Show 272 APPROPRIATION OF WATER the respective rights-of-way. The right-of-way intended by the 1891 act was neither a mere easement nor a fee simple absolute, but a limited fee on an implied condition of reverter in the event that the grantee ceased to use it or retain the land for the purpose indicated in the act. Under the Act of 1896, however, the beneficiary was intended to receive a revocable permit or license, not a limited fee.247 State Lands Laws of some Western States grant the right-of-way across lands of the State for diversion and distribution works required in effectuating an appropriation. Some require the payment of compensation, others not. Some examples follow: Nebraska. -Nebraska accords the right to occupy State lands and to obtain rights-of-way over highways, without compensation, to those who wish to construct the necessary water control works.248 South Dakota.- South Dakota grants to any person holding a valid statutory water right, over all school and public lands belonging to the State, a right of way for the construction of necessary waterworks when constructed by authority of the commissioner of School and Public Lands. The statute makes no mention of compensation.249 Idaho.-The Idaho statute grants the right-of-way over State lands to any person for construction and maintenance of works for conveyance of water. Just compensation, to be ascertained as provided for taking of private property for public use, must first be paid.250 Texas.-In Texas, the grant of right-of-way, not to exceed 100 feet in width, and the necessary area for any dam and reservoir site, for any of the purposes authorized by the water rights law, includes rock, gravel, and timber and the right-of-way for construction purposes. The bene- ficiary pays such compensation as the Texas Water Commission may determine.251 Oregon.-Oregon has several laws relating to grants of rights-of-way over State lands for ditches and other water facilities.252 The earliest Oregon statute granting rights-of-way over State lands to individuals and corporations for the construction of water ditches was approved February 24, 1885.253 This law provided that all patents issued by the State for any of its tide, swamp, overflowed, and school lands should be subject to any vested rights of the owners of such water ditches acquired under the law. This statute, said the 247 Kern River Co. v. United States, 257 U.S. 147, 152 (1921). 248Nebr. Rev. Stat. § § 46-244 to -251 (1968). 249 S. Dak. Comp. Laws Ann. § § 54-2 and 46-8-18 (1967). 250 Idaho Code Ann. § 42-1104 (1948). 251 Tex. Rev. Civ. Stat. Ann. art. 7582 (1954). 252Oreg. Rev. Stat. § § 541.030, .130, and .240 (Supp. 1969). 2S3Oreg. Laws 1885, p. 73, Rev. Stat. § 273.761 (Supp. 1969). |