OCR Text |
Show PROPERTY CHARACTERISTICS 479 operation and maintenance, and within such limitations the shares are freely transferable. Appurtenance of water right, which is a legal matter, then, is to be distinguished from appurtenance of mutual-company stock to land, which is a contractual matter between the company and its stockholders. In practice, the two terms often amount to the same thing. The water rights under which a mutual company operates may be appurtenant to the individual parcels of land served by the company. This might result, for example, from operation of State water law, as in Arizona (see below); or from original appurtenance of water rights to lands of individual neighboring farmers who later organized a company for better service of their pooled water supplies; or from action of the company in attaching its shares to specifically designated tracts of land. In any of these cases, the water right becomes an appurtenance to the individual tract of land in connection with which it is exercised, and both water right and stock shares pass with conveyance of the land. If changes of place of use of water are permitted by law or by company policy, the water right and the stock which represents it may be transferred to other land. On the other hand, the water rights may be appurtenant to the general service area of the company by reason of its appropriating water for the area as a whole, and the company may not take action in "locating" its shares on specific parcels. In such case, within the limits of transferability set by operational needs, any farmer may transfer his floating stock and the right to water service to any other part of the service area. The only attachment to land that is involved is a temporary one, necessarily recorded on the water delivery schedules of the company superintendent for operational purposes only. And the only appurtenance of water right is to the general service area. (3) Some litigated examples. Water rights in Arizona belong to the landowner. The Salt River Valley Water Users' Association-one of the largest mutual irrigation companies in the nation-performed the function of furnishing water to lands to which the shares "and the rights and interests represented thereby are appurtenant," not as owner of the irrigation water, "because it cannot and does not own the water," but as a carrier for its shareholders.217 In another case, this water users' association was adjudged to 217Adams v. Salt River Valley Water Users' Assn., 53 Ariz. 374, 382-383, 89 Pac. (2d) 1060 (1939). There is a clear distinction between the water works properties of an unincorporated association held in common by the members, and the right of appropriation possessed by each member by virtue of landownership: Biggs v. Utah Irrigating Ditch Co., 7 Ariz. 331, 345, 64 Pac. 494 (1901). A water user who owned less than the average number of shares per acre was entitled to have served to him his adjudicated water supply on payment of the same reasonable rate charged all other appropriators served by the company canal, "regardless of whether or not he did or did not own a single share of stock of the company," Olsen v. Union Canal & In. Co., 58 Ariz. 306, 317-318, 119 Pac. (2d) 569 (1941); Whiting v. Lyman Water Co., 59 Ariz. 121, 123-124, 458,459-460,124 Pac. (2d) 316, 129 Pac. (2d) 995 (1942). |