OCR Text |
Show 268 IDAHO is one of fact, and in each instance will be that quantity of water required to achieve a beneficial and economical use.72 A water right is measured by time as well as quantity. Where a user has appropriated water for a specific period of the year another may appropriate the same source during another period.78 The Idaho court has upheld agreements between users providing for the rotation of water, recognizing that such an arrangement can conserve water. There is no statute in Idaho which compels rotation, and the Idaho court has refrained from compelling such a program.74 C. RELATION OP WATER TO LAND Appropriations have been recognized on the public domain as well as on State lands, and water may be appropriated on land not owned by the appropriator. But a valid appropriation cannot be initiated through a trespass.75 A water right is an appurtenance to the land upon which it is used.76 However, since a water right is real property, it may be transferred separate and apart from the land itself, so long as the transfer does not injure other appropriators.77 But a conveyance of land, together with the appurtenances, carries with it the water rights, unless the water rights are specifically reserved by the grantor, or unless it can be shown that the parties did not intend the water rights to be conveyed.78 If a deed specifically designates and conveys certain water rights, there can be no implication that rights other than those described passed under the deed. Also, a portion of a user's land can be con- veyed along with a corresponding portion of the appurtenant water right.79 As a related matter, it should be noted that a water right and the ditch which carries the water may be owned separately.80 d. purpose op use Water must be appropriated for some useful or beneficial purpose, but the statute does not define beneficial use. Water rights have been recognized for irrigation, stockwatering, domestic, mining, munici- pal, and power purposes.81 Water may be appropriated for sale, rental, or distribution.82 Apparently, there has never been an Idaho Supreme Court decision recognizing recreational or esthetic uses of water. However, as noted above, by specific statutory authorization, the waters of certain of Idaho's scenic lakes may be appropriated by the Governor in trust for all of the people of the State. ™Uhrig v. Coffin, 72 Idaho 271, 240 P. 2d 480 (1952). ™Dunn v. Boyd, 46 Idaho 717, 271 Pae. 2 (1928). ™Helphery v. Perrault, 12 Idaho 451, 86 Pac. 417 (1906); and Muir v. Allison, 33 Idaho 146, 191 Pac. 206 (1920). »5Hutchins, "The Idaho Law of Water Bights," 5 Idaho Law Review 13-17 (1968). The reclamation of lands under the Carey Act is subject to certain additional statutory restrictions, Idaho code, sees. 42-2001 to 42-2509. 78 Idaho code, sees. 42-101, 42-220, and 42-1302. ¦" In re Robinson, 61 Idaho 462, 103 P. 2d 693 (1940); Idaho code, sec. 42-108 and 222. ™ Russell v. Irish, 20 Idaho 194, 118 Pac. 501 (1911). ™ Harris v. Chapman, 51 Idaho 283, 5 P. 2d 733 (1931). ^Simonson v. Moon, 72 Idaho 39, 237 P. 2d (1951). ^Hutchins, The Idaho Law of Water Rights, 5 Idaho Law Review 42-45 (1968). 82 Idaho Const, art. XV, sees. 1, 4, and 5; and Hard v. Boise City Irr. & Land Co., 9 Idaho 589, 76 Pac. 331 (1904). |