OCR Text |
Show INCHOATE APPROPRIATIVE RIGHT 585 posting notice, and in good standing, was likewise an interest in the realty, even though not yet a title.717 The Idaho Supreme Court holds that a permit to appropriate water is not real property under the statute, but is a consent given by the State to construct and acquire real property.718 Notwithstanding statements in the Idaho decisions to the effect that a permit is not real property, the supreme court has held that the holder of a permit cannot convey the water right represented thereby by handing the permit to a would-be purchaser, but must make a formal assignment or conveyance.719 Permit to Appropriate Water In California, the statutory administrative procedure is the sole means by which water of watercourses may be appropriated. In Idaho, there are two methods by which such an appropriation may be made: (1) the statutory procedure, and (2) what is called the "constitutional" method, by which one may validly appropriate water by diverting it and applying it to a beneficial use without recourse to the State administrator. Insofar as validity of the completed right is concerned, neither method is superior to the other. With respect to application of the doctrine of relation, the statutory method is more advantageous. These matters are discussed in chapter 7 under "Methods of Appropriating Water of Watercourses-Current Appropriation Procedures- Administrative-Exclusiveness of the statutory procedure." The first step in the administrative appropriation procedure in each of these States is the filing of an application with the State administrative agency for a permit to make the appropriation of water. If all requisites are fulfilled, the applicant receives from the State a permit which authorizes him to proceed with construction of works, diversion of water, and application of the water to beneficial use. When all conditions have been complied with and proof of completion of the appropriation has been made, the permittee receives from the State a license. In California, the license "confirms the right to the appropriation of such an amount of water as has been determined to have been applied to beneficial use."720 In Idaho, the license "shall be binding upon the state as to the right of such licensee to use the amount of water mentioned therein, and shall be prima facie evidence as to such right."721 niInyo Consolidated Water Co. v. Jess, 161 Cal. 516, 519-521,119 Pac. 934 (1912). See Merritt v. Los Angeles, 162 Cal. 47, 50-51, 120 Pac. 1064 (\9\2)\Haight v. Costanich, 184 Cal. 426, 431-432, 194 Pac. 26 (1920). 718Big Wood Canal Co. v. Chapman, 45 Idaho 380, 401402, 263 Pac. 45 (1927); Speer v. Stephenson, 16 Idaho 707, 716, 102 Pac. 365 (1909). See also Griffiths v. Cole, 264 Fed. 369, 372-373 (D.Idaho 1919); Sauve v. Abbott, 19 Fed. (2d) 619, 620 (D. Idaho 1927). 7l9Gard v. Thompson, 21 Idaho 485, 496, 123 Pac. 497 (1912). 720 Cal. Water Code § 1610 (West Supp. 1970). 721 Idaho Code Ann. § 42-220 (1948). |