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Show PROPERTY CHARACTERISTICS 485 Hence it is not an appropriation of water, and is not real property, but it is a consent given by the State to construct works and acquire real property.248 Despite this, the supreme court held that the holder of a permit must make a formal assignment or conveyance.249 The syllabus by the court in this case states that: "A water right is real estate and must be conveyed as real estate, and where one has a valid water permit issued to him by the state engineer, he cannot convey the water right secured thereby by simply handing the permit to a would-be purchaser." A Texas court of civil appeals adopted a rule of construction of the Texas water statutes "to the effect that water appropriations, permits, and irrigation systems may be sold and assigned without invalidating the appropriation."250 (3) Possessory rights on the public domain. It was the rule of the courts that a settler in good faith on the public domain acquired a possessory right with respect to the land on which he settled, and that he might convey the possessory interest in the land and in the water right appurtenant thereto, by parol or otherwise, to one who took possession from him.251 (4) Effect of informal transfer upon priority of right. One early result of the general rule that a written deed of conveyance is necessary to transfer an appropriative right was the concept that a transfer lacking all formalities operated as an abandonment of the water right, thus forfeiting the original priority and relegating the priority of the transferee to the date of his own beginning actual use of the water. Although this found favor in a few decisions, it tended to operate on the parties to the transaction with unnecessary severity. And it was clearly irrational in disregarding the fundamental rule that abandonment is an intentional process. The importance of the fallacious concept in the few jurisdictions in which it was accepted diminished or ended long ago.252 248Big Wood Canal Co. v. Chapman, 45 Idaho 380, 401-402, 263 Pac. 45 (l927);Speer v. Stephenson, 16 Idaho 707, 716, 102 Pac. 365 (1909). 249 Gard v. Thompson, 21 Idaho 485, 496,123 Pac. 497 (1912). ™ Fiarbanks v. Hidalgo County W.I. Dist. No. 2, 261 S. W. 542, 545 (Tex. Civ. App. 1923, error dismissed.) ™Hindman v. Rizor, 21 Oreg. 112, 116-118, 27 Pac. 13 (1891);McDonald v. Lannen, 19 Mont. 78,83-86, 47 Pac. 648 (1897);Featherman v. Hennessy, 42 Mont. 535, 539-540, 113 Pac. 751 (1911); Lobdell v. Hall, 3 Nev. 507, 517 (1868); First State Bank of Alamogordo v. McNew, 33 N. Mex. 414, 423-424, 427-429, 269 Pac. 56 (1928). 252Wiel, writing in 1911, concluded that it might properly be held that a parol sale is evidence of an abandonment, but not conclusive; and that the rule "properly has no ground for existence to-day." Wiel, S.C., "Water Rights in the Western States," 3d ed. vol. 1, § 555 (1911). For a sequence of pertinent California and Montana decisions, see Smith v. O'Hara, 43 Cal. 371, 376-377 (1872), but compare, McLeran v. Benton, 43 Cal. 467, 476 (1872); Barkeley v. Tieleke, 2 Mont. 59, 62-65 (1874)[Middle Creek Ditch Co. v. Henry, 15 Mont. 558, 572-581, 39 Pac. 1054 (1895); McDonald v. Lannen, 19 Mont. 78, 83-86, 47 Pac. 648 (1897); Wood v. Lowney, 20 Mont. 273, 277-278, 50 Pac. 794 (1897); Griseza v. Terwilliger, 144 Cal. 456, 461-462, 77 Pac. 1034 (1904); Featherman v. Hennessy, 42 Mont. 535, 539-540, 113 Pac. 751 (1911). |
