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Show 560 THE APPROPRIATIVE RIGHT any misapprehension that had resulted from its statement in the opinion in an earlier case in which it had observed gratuitously that the water and ditch rights exercised by a public service water corporation "really belong to the individual appropriator" and are appurtenant to the place of use, and then proceeded to its actual holding that a fortiori "must this be true in the case of a mutual water company."597 (d) The Nevada Supreme Court and the Federal court for the District of Nevada rendered opinions as to the purport of a statute enacted in 1913, which is still in effect. This law provides that water used for beneficial purposes shall remain appurtenant to the place of use, subject to two exceptions, one being that the provisions in question shall not apply in cases of companies that have appropriated water for diversion and transmission to lands of private persons at an annual charge.598 In the year following enactment, this Nevada statute was referred to by the State supreme court, but was held inapplicable to water rights in the case at bar on the ground that they were acquired prior to the enactment. The court held that the consumer in the case was entitled to receive the quantity of water he had been customarily served so long as he complied with reasonable regulations and paid a reasonable charge; that the consumer, not the company, was the actual appropriator.599 After this decision was rendered, the United States Supreme Court case with respect to a California company, noted above, was decided.600 Referring to observations in the opinion of Justice Holmes therein, the Nevada court held, on petition for rehearing (petition denied) that "whether or not the appellant [consumer] had a property interest in the right to furnish the water is not an issue in the case at bar, and our observations made in the opinion are not to be considered as decisive of this matter." Several years later, the Federal court for Nevada, referring to the statute and its exception noted above, expressed its belief that "The theory that the right vests explicitly in the customer is illogical under a statute which declares that his use of the water is not appurtenant to the land on which he uses it," and patronage and formed for themselves a mutual company were not entitled to carve any water rights out of their previous public utility patronage, inasmuch as the water right belonged to the company. The date of priority of their rights under their own mutual company was relegated to the date on which the mutual company operations began. S91Eldredge v. Mill Ditch Co., 90 Oreg. 590, 596-597, 177 Pac. 939 (1919). 598 Nev. Rev. Stat. § 533.040 (Supp. 1967). This statute and the State and Federal cases have been noted more briefly under "Property Characteristics-Appurtenance of Water Right to Land," and in the instant topic under "Public Regulation of Rates and Services." S99Prosole v. Steamboat Canal Co., 37 Nev. 154, 162-167, 140 Pac. 720, 144 Pac. 744 (1914). 600San Joaquin & Kings River Canal & In. Co. v. County of Stanislaus, 233 U. S. 454, 459-461(1914). |
