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Show 562 THE APPROPRIATIVE RIGHT the water right that unused rights of the consumer do not cease to exist but may be held by the carrier for sale to other consumers and thus no part of the full decreed appropriation to the carrier ditch need be abandoned to the source stream. A carrier ditch that also applies water to beneficial use has the right to legal ownership of the stream appropriation for all the water allocated to the ditch, and also the complete ownership of the ripened water right effectuated by application of a portion of that water to beneficial use by the carrier itself.606 (c) In 1900, the New Mexico Supreme Court held the law to be well settled that water might be diverted from a stream by an individual or a corporation and served to others for their beneficial use, the beneficial user having constituted the company his agent to divert and transport the water for his use.607 In affirming this decision, the United States Supreme Court held that Congress did not intend, in enacting the Desert Land Act,608 that surplus water on the public domain must be directly appropriated by the owners of the land on which beneficial use of water was to be made. That is, a corporation could be lawfully empowered to become an intermediary for furnishing water to irrigate the lands of third parties, for the rights conferred upon irrigation companies by Congressional legislation were not limited to such corporations as were "mere combinations of owners of irrigable land"609-in other words, not limited to individuals and mutual irrigation companies. The Federal court for the District of New Mexico, in reviewing principles of water law developed in the West, stated that a development company that con- tracts with land purchasers to supply them with water owns the irrigation works, but "the water right is appurtenant to the land and belongs to the owner thereof."610 (d) Likewise in Arizona, in 1901, it was held that a corporation organized for the purpose of furnishing water for agricultural purposes, but which itself owns no arable and irrigable land, becomes the mere agency of the water users in making the appropriation therefor.611 All persons who own lands under a canal 606 City and County of Denver v. Miller, 149 Colo. 96, 368 Pac. (2d) 982, 984 (1962). In the latter regard, the court cited City and County of Denver v. Brown, 56 Colo. 216, 138 Pac. 44 (1914). The court concluded that since the City of Denver was both the owner of the carrier ditch and the beneficial user of the water in dispute, "the city did not hold, like the ordinary carrier, as a trustee for the next consumer. The city was itself the consumer of and held every element of legal and equitable ownership possible, with respect to the 62 inches of water at issue here." 368 Pac. (2d) at 985. 601Albuquerque Land & In. Co. v. Gutierrez, 10 N. Mex. 177, 240-241, 61 Pac. 357 (1900). 60819 Stat. 377 (1877), 43 U. S. C. § 321 et seq. (1964). 609Gutierres v. Albuquerque Land & In. Co., 188 U. S. 545, 555-556 (1903). 610Murphy v. Ken, 296 Fed. 536, 545 (D. N. Mex. 1923), affirmed, 5 Fed. (2d) 908 (8th Cir. 1925). 6USlosser v. Salt River Valley Canal Co., 7 Ariz. 376, 390, 65 Pac. 332 (1901). |
