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Show PROPERTY CHARACTERISTICS 445 Right to the Flow of Water The general rule.-The appropriator owns an easement in the stream from which he diverts water and in its tributaries above his point of diversion. This consists of the right to have the water flow from the head of the stream and from the head of each tributary above his point of diversion, in sufficient quantity to the head of his ditch or place of diversion, and to have it of such quality as will meet his needs as protected by his water right.37 See chapter 13.) If diverted from the natural channel by other appropriators for their convenience, the prior appropriator is entitled to have the water delivered to him at available points by subsequent appropriators and at their expense.38 At this point, it is well to emphasize the elemental proposition that this right of the appropriator applies to the flow of water to his point of diversion-that it does not remain attached to the streamflow after it has passed down the channel from his premises. The principle was established in early California cases that after the water leaves his premises the appropriator no longer has any right or interest in it, and that he cannot complain of any uses made by others downstream.39 This distinction between the relative locations of the water has an important place in the law of adverse possession of water (see chapter 14). Incorporeal hereditament-The right of the prior appropriator to have the water flow in the stream to the head of his ditch is generally held to be an incorporeal hereditament.40 This does not prejudice the conclusion that although the appropriative right is an incorporeal hereditament, "It savors of, and is a part of, the realty itself."41 Wiel submits the proposition that although a water right by appropriation is often called an easement, this is not the better view. Being not subordinate to any land, but independent thereof and of equal dignity, it is not an easement therein. "Being but a usufruct, or privilege of flow and use, it is incorporeal."42 37Helena v. Rogan, 26 Mont. 452, 469-470, 68 Pac. 798 (1902). 3*Pima Farms Co. v. Proctor, 30 Ariz. 96, 106-107, 245 Pac. 369 (1926). See Salt Lake City v. Gardner, 39 Utah 30,4547,114 Pac. 147 (1911); Joseph W. Bowles Res. Co. v. Bennett, 92 Colo. 16, 22-24, 18 Pac. (2d) 313 (1932);State ex rel. Crowley v. District Court, 108 Mont. 89, 97-98, 88 Pac. (2d) 23 (1939). 39Eddy v. Simpson, 3 Cal. 249, 252 (1853); Hanson v. McCue, 42 Cal. 303, 310 (1871); Lakeside Ditch Co. v. Crane, 80 Cal. 181, 182-183, 187, 22 Pac. 76 (1889). ^Rickey Land & Cattle Co. v. Miller & Lux, 152 Fed. 11, 14 (9th Cir. 1901);Madison v. McNeal, 171 Wash. 669, 675, 19 Pac. (2d) 97 (1933); Wyatt v. Larimer & Weld In. Co., 18 Colo. 298, 315, 33 Pac. 144 (1893). 41 Rickey Land & Cattle Co. v. Miller & Lux, 152 Fed. 11, 14 (9th Cir. 1907). 42Wiel, S. C, "Water Rights in the Western States," 3d ed., vol. 1, § § 53 and 287, vol. 2, § 1340(1911). The appropriative right is generally appurtenant to the land the water is used on, but in most States it may be severed therefrom, transferred, and made appurtenant to |
