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Show 454 THE APPROPRIATIVE RIGHT channel of any of the public streams of the state to the injury of any other user of the waters of the stream."86 A Federal court likewise took a dim view of such a contention, saying that it "asserts for the miner in Idaho constitutional rights unknown to American constitutional law-the right not only to a preference in the use of a stream, but the right to inflict unlimited injury upon property of those who have acquired vested rights as manufacturers or agriculturists."87 (8) Grant by appropriator of easement to pollute a stream. A nonriparian appropriator of water of a California stream granted to a mining company, for a consideration, a perpetual right to pollute the stream by using it as a conduit to carry off the debris deposited from mining claims. There was no showing in the case that pollution from the mining operations was so extensive as to amount to a public nuisance. The California Supreme Court held that although no authority had been cited for or against the proposition that an easement may be attached to a water right, there was no legal or practical objection to it. An appropriative right constitutes an interest in realty, and it therefore can appropriately serve as a servient estate to which an easement may be annexed.88 Appurtenance of Water Right to Land Early and Widespread Recognition in the West The concept of appurtenance of an appropriative right to the land on or in connection with which the water is used received early acceptance in California. The Civil Code included the following enactment:89 A thing is deemed to be incidental or appurtenant to land when it is by right used with the land for its benefit, as in the case of a way, or watercourse, or of a passage for light, air, or heat from or across the land of another. Prior to this enactment the California Supreme Court held, with respect to public lands, that the water privilege used in connection with a sawmill on the public domain passed with a conveyance of the mill. The reason was that the mill would have been wholly valueless without the water.90 S6Hill v. Standard Mining Co., 12 Idaho 223, 233, 85 Pac. 907 (1906), quoted with approval in Ravndal v. Northfork Placers, 60 Idaho 305, 311,91 Pac. (2d) 368 (1939). 87Bunker Hill & Sullivan Min. & Concentrating Co. v. Polak, 7 Fed. (2d) 583, 585 (9th Cir. 1925). 88Wright v. Best, 19 Cal. (2d) 368, 382-383, 121 Pac. (2d) 702 (1942). The court stated that the novelty of the incident was no bar to its recognition as an easement if its creation violated no principle of public policy. 89Cal. Civ. Code § 662 (1872). 90McDonald v. Bear River & Auburn Water & Min. Co., 13 Cal. 220, 233, 235-236 (1859). |