Butte County v. Lovinger , 64 S.D. 200 ( 1936 )

I believe that the water rights involved in this case are represented by and pass with the shares of corporate stock of Redwater Irrigating Association. I do not think, under the circumstances disclosed by the record, that the water rights were appurtenant to the land upon which the water was used in any such sense as to pass by a mortgage of that land in the usual form without any specific mention of water rights. I concur, therefore, in the affirmance of the judgment and order appealed from.

I think, however, that the same result should be reached upon the record in this case whether we say, as a matter of technical legal theory, that the appropriator is the canal company or the consumer. I prefer, therefore, to express no opinion on that particular point, which seems to me in any event rather an academic question than a matter of much practical importance. The cases dealing with the precise point are in a state of much confusion, partly because of a frequent failure to distinguish between public service water companies and mutual canal companies, and partly because the law of the subject seems somewhat in a stage of transition or flux. See Wiel, Water Rights in the Western States (3d Ed.) §§ 139, 282, 396, 508. The proponents of either view do not seem to follow their theory consistently or to pursue it to its logical conclusions in all cases where the point is raised. Even under the so-called "Colorado rule," which appears to declare in some cases and for some purposes that the consumer is the appropriator and the canal company a mere carrier, the canal company is deemed and treated as the appropriator for other purposes. For instance, the canal company may both sue and be sued as an appropriator. Town of Sterling v. Pawnee, etc., Co. (1908)42 Colo. 421, 94 P. 339, 15 L.R.A. (N.S.) 238; Farmers' etc., Co. v. Agricultural, etc., Co. (1896) 22 Colo. 513, 45 P. 444, 55 Am. St. Rep. 149. And a judgment against the distributing company as appropriator will bind the consumers, whether they be regarded as themselves appropriators and owners of the natural resource or regarded as having only a right of service. Montezuma Canal Co. v. Smithville Canal Co. (1910) 218 U.S. 371, 31 S. Ct. 67, 54 L. Ed. 1074. Again, as stated by Mr. Wiel (§ 396): "The possessory principle is followed regarding change of use, and the right is held not to inhere inseparably in the specific use made; and likewise it is held * * * that an appropriation may be made by one who owns no land of his own."

It may be believed, therefore, that even under the broad language of some of the Colorado decisions to the effect that the consumer is the appropriator, it does not follow as any necessary consequence that the right must be always appurtenant to any particular land. Even if it be assumed as a matter of academic theory that the consumer is the appropriator and that the water right in its inception became appurtenant to the land on which it was used, it is nevertheless true, under all views or theories of appropriation, that the owner of land and of the water right used thereon and appurtenant thereto may sever the right from the land if he so desires and hold it and treat it as nonappurtenant; and he may do this by any method that satisfactorily and sufficiently evidences his intention of so doing. It would appear that, when such owner causes or permits the water right to be represented by shares of stock in a corporation, which are personal property and pass as such like any other corporate stock, he has accomplished or consented to a severance if ever the right was appurtenant to land.

For these reasons I do not believe we are under any necessity of attempting to determine in this case the highly theoretical and more or less academic question of just who may have been, in the eyes of the law, the original appropriator of the water right here involved.