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Show ELEMENTS OF THE APPROPRIATIVE RIGHT 549 Oregon court previously inclined to the view that the appropriator whose bona fide intent contemplates a use by another person or on other lands than his is the principal and the other person the agent, but concluded that "in whatever capacity the parties to the appropriation may be considered, the result is the same."559 Subsequently, this court realized that the result is not the same when ownership of the water right is involved.560 This important question is discussed later under "The Real Appropriator-Principal and agent." In an action to declare certain water rights null and void, the Wyoming Supreme Court expressed its belief that if the law is complied with in other respects, one person may act as volunteer for another in connection with the steps leading up to a perfected appropriation.561 The rule applies to transfer of an inchoate right; that is, the purchaser may complete the appropriation.562 The possessor of an appropriative right initiated by another must show some contractual relation or privity with him in order to be entitled to succeed to the original date of priority. Otherwise he cannot "tack" his own title onto that of his predecessor, but takes only by recapture. The effect is that of a new appropriation, with priority as of the time of such taking.563 (See "Property Characteristics-Conveyance of Title to Appropriative Right," above.) The water appropriation statute of Kansas provides that any person may apply for a permit to appropriate water to a beneficial use, "notwithstanding that the application pertains to the use of water by another, or upon or in connection with the lands of another." There is a proviso that rights perfected under such an application "shall attach to the lands on or in connection with which the water is used and shall remain subject to the control of the owners of the lands as in other cases provided by law."564 The provisions, in the Texas statute relating to contracts to supply water pertain specifically to persons as well as to associations, corporations, and public districts.565 Appropriation of Water by Individuals and Organizations for Delivery to Consumers "Any person or the State of Arizona or a political subdivision thereof may appropriate unappropriated water * * * for his personal use or for delivery to consumers."566 559Nevada Ditch Co. v. Bennett, 30 Oreg. 59, 97-98, 45 Pac. 472 (1896); Nevada Ditch Co. v. Canyon & Sand Hollow Ditch Co., 58 Oreg. 517, 521, 114 Pac. 86 (1911). 560In re Walla Walla River, 141 Oreg. 492, 498, 16 Pac. (2d) 939 (1932). S6iScherck v.Nichols, 55 Wyp,4, 21, 95 Pac. (2d) 74 (1939). S62Nevada Ditch Co. v. Bennett, 30 Oreg. 59, 93, 45 Pac. 472 (1896). 563Kenck v. Deegan, 45 Mont. 245, 249, 122 Pac. 746 (1912). See Osnes Livestock Co. v. Warren, 103 Mont. 284, 290, 62 Pac. (2d) 206 (1936). 564Kans. Stat. Ann. § 82a-708a (1969). S65Tex. Rev. Civ. Stat. Ann. arts. 7547, 7554, et seq. (1954). 566 Ariz. Rev. Stat. Ana § 45-141(A) (Supp. 1970). |
