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Show ELEMENTS OF THE APPROPRIATIVE RIGHT 563 in this State, irrigated by means of water furnished by and through such canal, become appropriators and possessed of appropriative rights in the order of their several priorities.612 (e) The Wyoming Supreme Court has held that "The carrier of water is but the agent or trustee for others. The actual appropriator of the water is the party who puts it to beneficial use." A common carrier has the duty to distribute the water to applicants as they come, and to distribute only the quantity of water over which it has control. And reciprocally, no landowner can have any right to the water unless he appropriates it and uses it for a beneficial purpose. The court emphasized that regardless of whether, in the instant case, the organization should be regarded as a common carrier or a strictly private corporation, owners of land under the canal could acquire no right to any part of the water without taking certain essential steps, including making an application to or purchase from the company respecting a right of use, and thereafter applying the water to a beneficial purpose.613 (f) A section of the Kansas water rights statute provides in part that:614 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: Provided, Any rights to the beneficial use of water perfected under such applications 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. This section, vesting ownership of the appropriative right in the landowner- consumer, would be applicable whether the initial appropriation is made by a commercial irrigation company or by a mutual company. Mutual enterprise.-(\) Formal title to water rights exercised by a mutual com- pany may be held either by the irrigation organization or by individual share- holders, depending upon State law and upon the action taken in acquiring the rights. However, it is the general rule in the West that regardless of holding of for- mal title, actual ownership of appropriative rights is vested in the water users and is represented by shares of stock in the corporation. Some questions of appur- tenance of mutual company stock to land have been discussed earlier in this chapter under "Property Characteristics-Appurtenance of Water Right to Land." 612Gould v. Maricopa Canal Co., 8 Ariz. 429, 447, 76 Pac. 598 (1904). inPima Farms Co. v. Proctor, 30 Ariz. 96, 112-113, 245 Pac. 369 (1926), the supreme court referred to the defendant public service corporation as doing the appropriating, but this obviously was simply a convenient way of referring to the defendant as doing the construction and operation work for, and as representing the interests of, its many consumers. The contest was between prior and subsequent appropriators; there was no issue of ownership of the appropriative right. The attitude of the supreme court on the question of water right ownership was not changed thereby. See Olsen v. Union Canal & In. Co., 58 Ariz. 306, 317-318, 119 Pac. (2d) 569 (1941); Whiting v. Lyman Water Co., 59 Ariz. 121,123-124,458,459-460, 124 Pac. (2d) 316, 129 Pac. (2d) 995 (1942). ™ State v. Laramie Rivers Co., 59 Wyo. 9, 41-46, 136 Pac. (2d) 487 (1943). 614Kans. Stat. Ann. § 82a-708a (1969). |
