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3. The Property and Other Rights in General of the Prior Appropriator. 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 such property. In fact, private property in the running waters of a natural stream, flowing in its natural channel, can not be acquired, separate and distinct from a property in the land through and over which the stream runs. In Parks Canal and 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. He can 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

Lower King's River W. Co. v. King's River etc. Co., 60 Cal. 408; Parks Canal and M. Co. v. Hoyt, 57 Id. 44; City of Los Angeles v. Baldwin, 53 Id. 469; Nevada County etc. Co. v. Kidd, 37 Id. 282; McNo. 9-1

1

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

33.

2 57 Id. 44.
3 53 Id. 469.

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 can not 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.

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

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

4 15 Id. 161.

5 13 Cal. 33.

6 29 Id. 200.

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