| OCR Text |
Show 480 THE APPROPRIATIVE RIGHT have the right to provide in its articles of incorporation that shares of capital stock, which merely evidence the right to a certain quantity of water, should be inseparably appurtenant to the lands of the shareholders. The lien for a stock assessment is superior to a mortgage lien given and recorded prior to the levy of assessment.218 The Colorado Supreme Court has viewed neither the canal company alone nor the water users alone as appropriators in the strict sense of the term. The result of their combined acts of diverting the water and applying it to a beneficial use is to constitute a completed appropriation.219 The cited case involved the question of inclusion of value of water rights in the rate base of a commercial company; but in cases dealing with mutual companies the courts likewise insist that both diversion and application of the water to beneficial use within a reasonable time are necessary to a valid appropriation, so that completion requires performance on the part of the water users. In pointing out, in an early Colorado case, the essential differences between prior right to the use of water and ownership of stock in an irrigation company, the supreme court stated that "A stockholder in an irrigating company who makes an actual application of water from the company's ditch to beneficial use may, by means of such use, acquire a prior right thereto; but his title to the stock without such use gives him no title to the priority. He may transfer his stock to whom he will; but he can only transfer his priority to some one who will continue to use the water."220 Another view-and a logical one-is that a mutual corporation is simply the agent of the stockholder-appropriators to carry their water to where they may make the beneficial use.221 "It would seem to be immaterial at what stage of the proceedings the water users, or real appropriators, employed or organized a corporation as an instrumentality in constructing a ditch as a means of conveying to their lands the water which they were in this manner attempting to appropriate, and to which they afterwards secured a complete right."222 If the group begin as independent appropriators and subsequently exercise their water rights through a mutual company ditch, their water rights remain even though a community ditch is substituted for their original means of diversion.223 "Water rights are pooled in a mutual company for convenience of operation and more efficient distribution, and perhaps far more convenient 218 Green & Griffin Real Estate & Investment Co. v. Salt River Valley Water Users'Assn., 25 Ariz. 354, 359-362, 217 Pac. 945 (1923). 219 Jefferson County v. Rocky Mountain Water Co., 102 Colo. 351, 356, 361, 79 Pac. (2d) 373 (1938). 220Combs v. Agricultural Ditch Co., 17 Colo. 146,150-152, 28 Pac. 966 (1892). 221 In re Walla Walla River, 141 Oreg. 492, 498, 16 Pac. (2d) 939 (1932);Eldredge v.Mill Ditch Co., 90 Oreg. 590, 596, 177 Pac. 939 (1919). 222In re Silvies River, 115 Oreg. 27,100-103, 237 Pac. 322 (1925). 223Compare Oppenlander v. Left Hand Ditch Co., 18 Colo. 142, 147-148, 31 Pac. 854 (1892). |
