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Show 566 THE APPROPRIATIVE RIGHT This is in line with the long established water policy of Arizona that ownership and possession of land is essential to a valid appropriation of streamflow, and that therefore the appropriative water rights of a canal company, whether public utility or mutual, vest in the landholding water users and not in the company.623 Principal and agent.-In explaining the interrelationship of parties who per- form different parts of the appropriative process-one performing the service of diversion and distribution of water and the other applying the water to a bene- ficial use-courts have sometimes designated them as principal and agent. (1) Thus, if the consumer who actually applies to beneficial use the water delivered by a commercial irrigation company is held to be the real appropriator, the company is said to be his agent in making the water available for his use.624 And a mutual corporation formed by water users for the purpose of conven- ience in management and water distribution "becomes merely their agent for the purpose of serving their several interests."625 (2) It has been said that whether the irrigation company is commercial or mutual, it "becomes an intermediary agent of the owner of the land and water right and diverts and carries the water" from the stream to the land-a carrier of the water.626 The Arizona Supreme Court has taken this view, regardless of whether the water rights are acquired before or after formation of the company organization.627 (3) On the other hand, in pointing out the distinction between (a) a corpora- tion organized for profit in supplying water to all potential consumers in its service area, and (b) a mutual irrigation company organized to carry water appro- priated by its stockholders, the Oregon Supreme Court stated that: "The former corporation [commercial] becomes the owner of the use of the water appropri- ated and the irrigator becomes its agent to apply the water supplied to a beneficial '"Slosser v. Salt River Valley Canal Co., 7 Ariz. 376, 390, 393, 65 Pac. 332 (1901); Gould v. Maricopa Canal Co., 8 Ariz. 429, 447, 76 Pac. 598 (1904); Olsen v. Union Canal & In. Co., 58 Ariz. 306, 317-318, 119 Pac. (2d) 569 (1941). The right to delivery of water by owners of a canal and reservoir system "depends entirely upon the right of appropriation held by the water user, and is not in any manner dependent upon his owning stock in such a corporation." Whiting v. Lyman Water Co., 59 Ariz. 121, 123-124, 458, 124 Pac. (2d) 316, 129 Pac. (2d) 995 (1942). The last sentence quoted from this opinion in the Whiting case is not applicable to situations such as in the Salt River Valley Water Users' Association, as pointed out later under "Right of Consumer to Receive Water From the Distributing Agency-Mutual irrigation company." 62AProsole v. Steamboat Canal Co., 37 Nev. 154, 158-162, 140 Pac. 720, 144 Pac. 744 (1914); State v. Laramie Rivers Co., 59 Wyo. 9, 42, 45-46, 136 Pac. (2d) 487 (1943). 62SHildreth v. Montecito Creek Water Co., 139 Cal. 22, 29, 72 Pac. 395 (1903). Water rights acquired by a mutual company for the service of its stockholders belong equitably to the latter: Consolidated People's Ditch Co. v. Foothill Ditch Co., 205 Cal. 54, 62-63, 269 Pac. 915 (1928). 626Murphy v. Kerr, 296 Fed. 536, 545 (D. N. Mex. 1923). 637 The corporation is "a mere agency" by which the consumer appropriations are made effective: Slosser v. Salt River Valley Canal Co., 7 Ariz. 376, 390, 65 Pac. 332 (1901). Mutual corporations, in this respect, "have duties similar to that of common carriers." Whiting v. Lyman Water Co., 59 Ariz. 121, 124, 458, 124 Pac. (2d) 316, 129 Pac. (2d) 995 (1942). |
