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Show PROPERTY CHARACTERISTICS 459 It appears that in Montana the question as to whether a water right is appurtenant to the land on which the water is used is a question of fact.118 One who asserts that a water right and ditch are appurtenant to certain lands has the burden of proving that they are appurten- ances.119 (6) Nevada. The fact that the appropriative right is an appurtenance to the realty in connection with which the use of water is made is recognized by the courts.120 However, the use of water by a trespasser did not make the water appurtenant to the land. Hence, the trespasser's use of the water thereon did not inure to the benefit of one who subsequently acquired valid title to the land.121 In a case arising in Nevada, a Federal court said it to be a generally accepted principle in the arid States that shares of capital stock in a mutual irrigation company-a nonprofit enterprise-are appurtenant to the land of the share- holder irrigated through the system of the company.122 The section of the Nevada water rights statute providing that all water used in the State for beneficial purposes shall remain appurtenant to the place of use contains a proviso reading: "That the provisions of this section shall not apply in cases of ditch or canal companies which have appropriated water for diversion and transmission to the lands of private persons at an annual charge."123 This proviso had the attention of both the Nevada Supreme Court and the United States District Court for Nevada. Although the situa- tion is discussed in more detail later (under "Elements of the Appro- priative Right-Sale, Rental, or Distribution of Water-Public Regulation of Rates and Services" and "The Real Appropriator-Commercial Enter- prise"), brief references on the matter of appurtenance of water right to land are in order at this point. In the State case, the supreme court held that any rights that the consumer had acquired by application of the water to beneficial use prior to enactment of the statute were not affected by it. But as to the statute, the court expressed its 334 (1905); Pew v. Johnson, 35 Mont. 173, 180, 88 Pac. 770 (1907);Hays v.Buzard, 31 Mont. 74, 82, 77 Pac. 423 (1904). 118 Yellowstone Valley Co. v. Associated Mortgage Investors, Inc., 88 Mont. 73, 84, 290 Pac. 255 (1930). 119Smith v.Denniff, 24 Mont. 20, 29, 60 Pac. 398 (1900). 120Rickey Land & Cattle Co. v. Miller & Lux, 152 Fed. 11, 15 (9th Cir. 1907). To be available and effective, a water right for agricultural purposes must be attached to the land and become in a sense appurtenant thereto by actual application of the water: Prosole v. Steamboat Canal Co., 37 Nev. 154, 161, 164, 140 Pac. 720, 144 Pac. 744 (1914). 121 Smith v.Logan, 18 Nev. 149,154, 1 Pac. 678 (1883). 122Pacific States Savings & Loan Corp. v. Schmitt, 103 Fed. (2d) 1002, 1004 (9th Cir. 1939). 123Nev. Rev. Stat. § 533.040 (Supp. 1969). |