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8 89.

III. EXTENT OF THE Right ACQUIRED-Continued.

& 87. True capacity of ditch the proper measure.

88. Measurement of water. IV. SUCCESSIVE APPROPRIATORS.

Rights of subsequent appropriator.
90. Successive appropriations.
91. Periodical appropriations.
92. Conditions under which subsequent appropriation may

be effected.
93. Division of increase in stream.
94. Wrongful diversion of springs.

95. Right to tributaries of stream. V. ABANDONMENT OF RIGHT,

8 96. General doctrine of abandonment.

97. Methods of abandonment.

98. Abandonment by adverse user. VI. REVIEW OF THE SYSTEM.

$ 99. This system as a whole.

100. Defects of the system.
101. Presumption that stream was on public land

I. NATURE OF THE RIGHT ACQUIRED.

§ 67. Appropriator's right begins at head of his

ditch. The doctrine is settled by repeated decisions that an appropriator who has constructed a ditch, and is thereby diverting the water of a stream, or any portion of it, for some beneficial purpose, obtains and has no property whatever in the water of such stream while it is flowing in its natural channel or bed, and before it reaches the "head" or commencement of the ditch where the diversion begins. It has even been questioned whether his right to the water after diversion, and while flowing through the ditch, is really a "property," or only an exclusive right of use; but it is settled beyond all question that he has no property in the water of a natural stream, flowing in its natural current and channel, before the diversion into his ditch or other structure takes place. He can maintain no actions based upon

He can

such property. In fact, private property in the running waters of a natural stream, flowing in its natural channel, cannot be acquired, separate and distinct from a property in the land through and over which the stream runs.' In Parks Canal & M. Co. v. Hoyt’ it was held that the water flowing in the stream above the head of the appropriator's ditch is realty, a part of the land, and does not become in any sense his property until it passes into his control in his ditch or other works. not, therefore, maintain an action upon an implied contract, as for the price of personal property sold, against a person who has wrongfully diverted the water from the stream above the head of his ditch. His legal remedy for such an injury is by an action on the case to recover damages for the tort. In Los Angeles v. Baldwin, although it appeared that the city had, by prescription or otherwise, acquired the right to appropriate and use the entire water of the Los Angeles river, yet it was held that the city did not own the corpus of the water while flowing in the river. In Kidd v. Laird“ the general doctrine was laid down that running water, while flowing in its natural manner in the natural channel of a stream, cannot be made the subject of private ownership. A right may be acquired to the use of the water in such a condition, which will be protected as though it were a right of property; but this right is not a special property in the water itself, -in the corpus of the flowing water.

3

1 Lower Kings River W. Co. v. Kings River, etc., Co., 60 Cal. 408; Parks Canal & M. Co. v. Hoyt, 57 Cal. 44; City of Los Angeles v. Baldwin, 53 Cal. 469; Nevada Co., etc., Co. v. Kidd, 37 Cal, 282; Mc

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Donald v. Askew, 29 Cal. 200; Kidd
v. Laird, 15 Cal. 161; Ortman v.
Dixon, 13 Cal. 33.

257 Cal. 44.
353 Cal. 469.
* 15 Cal. 161.

$ 58. Nature and extent of right depends on pur

pose of appropriation.

The nature and extent of the right acquired in the water after its diversion, while under the control of the appropriator, in his ditch, canal, reservoir, or other structure, must depend, I think, upon the purpose for which the appropriation is made. Where the appropriation is made for purposes of irrigation, or agriculture, or municipal uses, or mining, or for sale to others to be used by them in any of these modes, where the use wholly or largely consists in the consumption, it would seem that the appropriator acquired a higher right, a right more nearly equivalent to absolute property or ownership, than in cases where the appropriation is made simply for the purpose of milling, or of propelling machinery of any kind. In the latter case the use is not a consumption, and the water may be returned to its natural channel, after the use, without substantial diminution in quantity. Decisions concerning milling do not, therefore, in my opinion, furnish a necessary rule for other kinds and purposes of appropriation. In Ortman v. Dixon the court said, concerning one who had appropriated water for a mill: “Whether A., by erecting a mill and dam, becomes entitled to the water in specie, or whether he is entitled to anything more than the use of the water as a motive power; whether there may not be an appropriation of the mere use, as well as an appropriation of the water itself, the corpus of the water, for sale,-are questions which need not be and are not now decided." In the later case of McDonald v. Askew? the court laid down a more definite rule on this particular matter: “One who locates on a stream, and appropriates the water for a mill or other machinery, does not obtain a property in the water as such, but only a right to the

a

113 Cal. 33.

% 29 Cal. 200.

momentum of its fall at that place, and to the flow of the water in its natural channel."

$ 59. Property in ditches and canals.

There is, of course, a plain distinction between the appropriator's right to the water which he diverts, and his right to the canal, ditch, reservoir, or other structure through which the water is conveyed. A ditch or canal itself, used for conveying the water to a mine or elsewhere, is not a mere easement or incorporeal hereditament; it is land.' If, therefore, a ditch runs from a stream to a mining "claim," and belongs to the owner of the mine, who uses a portion of its water in working his mining claim, it does not follow that the ditch is an appurtenance of the mining claim. And if the owner of a mining claim purchases a water ditch, "and the water rights thereto appertaining," this purchase does not of itself constitute the ditch and water rights appurtenances of the mining claim.?

Sale of ditches and water rights. The exclusive right to divert and use the water of a stream acquired by appropriation, as well as the ditch or other structure through which the diversion is effected, may be transferred and conveyed like other property or rights analogous to property. If a person having a possessory right to a parcel of land on a stream has erected a mill thereon, and has acquired a right to the water of the stream for his mill, a valid sale and conveyance of such real property transfers the water right also to the vendee. While a ditch or other similar structure for appropriating and diverting water may be sold, the sale and conveyance must be by a written instrument,-a deed, -as in the case of other real estate. A mere verbal sale or transfer would be nugatory.' A person who enters into possession of such a ditch, under a mere verbal sale to himself, does not succeed to any rights of priority held by the vendor, so as to obtain the benefit of the vendor's prior appropriation; he must date his own appropriation, as against all other opposing claimants, from the time when he enters into possession.2 [But the supreme court of Oregon, in a recent decision, without denying the doctrine laid down in Smith v. O'Hara, holds that where one holding a possessory right to public land appropriates water for the purpose of irrigating it, the water right becomes a part of the improvements, and may be sold verbally and transferred with the possessory right. It is therefore necessary, as we understand this decision, to distin. guish between a sale of a ditch or canal as a distinct article of corporeal property and a sale of the same ditch, as an improvement on land, and in connection with the possess. ory right to the land to which it belongs. In the latter case, the transfer of the ditch or the water right does not require any higher species of conveyance or assurance than that which will pass the vendor's interest in the land to which the ditch and water right are incidents. The Ore. gon court, in the case to which we refer, holds that when a settler appropriates water for the necessary irrigation of the land occupied by him, it becomes as much a part of his improvements as his buildings or fences, and can be sold and transferred with his possessory right in the same

$ 60.

1 Reed v. Spicer, 27 Cal. 61. * Quirk v. Falk, 47 Cal. 453.

3 McDonald v. Bear River, etc., Co., 13 Cal. 220.

1 Smith v. O'Hara, 43 Cal. 371; Lobdell v. Hall, 3 Nev, 507; Burnham y. Freeman, 11 Colo. 601, 19 Pac. Rep. 761. [A water right can be conveyed by a bill of sale not under seal. It certainly passes the equitable title, and that is suffi. cient, under our law, when for. tified by possession. Ortman v. Dixon, 13 Cal. 33. A co-owner of

LAW W. R.—7

a water right, acquired by appropriation, can convey his own interest, but cannot convey so as to injuriously affect his co-tenant's right. Henderson v. Nicholas, 67 Cal. 152, s. c. 7 Pac. Rep. 412.]

2 Smith v. O'Hara, 43 Cal. 371.

3 Hindman v. Rizor, 21 Oreg. 112, 27 Pac. Rep. 13.

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