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Show PROPERTY CHARACTERISTICS 443 Whatever ownership concept of water flowing in a natural stream-(a) public ownership, or (b) State ownership, or (c) ownership in the "negative community" or by no one-is favored in a particular western jurisdiction, State administrative control over the handling of water and rights to the use thereof is not affected by doctrinaire differences between the concepts. Pragmatically, the important principle is that private ownership of stream water while in its natural environment does not exist; but private rights to abstract and use such waters-under State supervision and control in the exercise of its police powers-do exist, and they are property rights. Right of Private Property Other matters important to the present context are brought out in chapter 5. These include: - The appropriative right is a right of private property. It is subject to ownership, disposition, and litigation as in the case of other forms of private property. - The appropriative right is valuable property. - The general rule in the West is that the appropriative right is real property. Although the general rule is followed with respect to certain points in Montana, there is an important exception with respect to taxation.29 As a corollary to the general rule, an action to quiet title to an appropriative right is in the nature of an action to quiet title to real estate. Ownership of the Appropriative Right In general-The appropriative right is an interest in real estate.30 As a general practical matter, a person who is legally competent to own title to land in a particular jurisdiction has equal competence to hold title to an appropriative water right therein, subject to any special qualifications that the State law may impose upon those who exercise appropriative water rights. (See, in chapter 7, "Who May Appropriate Water".) Multiple ownerships of appropriative right.-The possibility of ownership by more than one person of a single appropriative right was acknowledged in the early mining days. In one case, the California Supreme Court remarked that, with reference to the right to water, "we do not see why this right may not be acquired by two or more acting together, or why, when they do acquire it, they do not hold it as other property, and may not sue as such for any unlawful interference with it."31 Water companies appeared as litigants in many early California water rights controversies. From the first, throughout the West, recognition of group ownership of water privileges, whether informal or organized, was either 29 This is discussed in chapter 5 under "Water Rights-Appropriative Right-Real Property: The Montana Rule." 30 Although an interest in realty, the appropriative right is a right of use and is subject to loss as a result of nonuse. It thus differs from title to land. 31Kimball v. Gearhart, 12 Cal. 27, 47 (1859). |