OCR Text |
Show 550 THE APPROPRIATIVE RIGHT In 1900, the New Mexico Supreme Court declared that to constitute a valid appropriation of water a rightful diversion and an application to some beneficial use must be established, neither being sufficient without the other, and that: It is not essential that the water shall be used by the person or corporation diverting the water from the stream, for the law is well settled that the water may be diverted from the streams by canals and ditches owned by individuals or corporations, and conducted long distances and beneficially used by others. This is fully established by the large canal and ditch systems existing in California, Colorado, Arizona and many other States."567 Whether explicitly or implicitly, all western water appropriation statutes authorize individuals, groups, formal organizations, and public agencies and entities to make such appropriations either for their own uses, or for disposition to consumers, that is, those who put the water to beneficial use. And long prior to enactment of the general water statutes in the several Western States and Territories, such practices were followed pursuant to local custom and judicial recognition. In chapter 6, references are made to these practices in the Mormon settlements in Utah, gold mining regions of California and other northwestern States and Territories, and in Indian, Spanish, and Mexican communities in the Southwest. Water Supply Enterprises568 Organizations may be formed to supply water for any of the purposes for which water may be appropriated. The great majority of such enterprises in the West were formed initially for the supplying of water for irrigation of land. The purpose of an irrigation organization is to provide water for the use of agricultural lands that cannot be irrigated by individual means as conveniently 567Albuquerque Land & In. Co. v. Gutierrez, 10 N. Mex. 177, 240-241, 61 Pac. 357 (1900), affirmed, 188 U.S. 545 (1903). Even earlier, the Colorado Supreme Court held that the State constitution "unquestionably contemplates and sanctions the business of transporting water for hire from natural streams to distant consumers." Wheeler v. Northern Colorado In. Co., 10 Colo. 582, 588, 17 Pac. 487 (1888). In 1912, in a suit to determine relative appropriative rights of two irrigation systems in the waters of Pecos River, a Texas court of civil appeals observed that "statutory appropriations, when filed in compliance with law, give to such appropriators the right to take the water to nonriparian lands, there to use it for themselves or to dispose of it to water consumers." Biggs v. Miller, 147 S. W. 632, 637 (Tex. Civ. App. 1912). And in Montana in 1938: "An appropriation of water may be made for purposes of sale or rental." Sherlock v. Greaves, 106 Mont. 206, 218, 76 Pac. (2d) 87 (1938). 568 For further discussions of water supply enterprises in this chapter, see "Property Characteristics-Conveyance of Title to Appropriative Right-Some Aspects of Conveyance of Appropriative Right-Conveyance of water right represented by shares in mutual corporation" and "Elements of the Appropriative Right-Purpose of Use of Water." In chapter 7, see "Who May Appropriate Water" and "Methods of Appropriating Water of Watercourses-Restrictions and Preferences in Appropriation of Water-Preferences in Water Appropriation." |