THE LAW OF WATER OWNERSHIP. 



BY W. A. HANCOCK. 



COR the purposes of this article, it will be admitted 

 1 that it is an elementary principle of law that air, 

 light and water are the common property of man- 

 kind. 



And, further, it will be admitted that the only 

 method by which any private interest can be secured 

 in water in the arid region of the United States is by 

 prescription or by enactments national, State or 

 Territorial. If any rights for irrigating purposes in 

 the arid region have been acquired by prescription, 

 it is the result of appropriations made prior to the 

 organization of the Territorial or State government. 



In Arizona Territory the first legislature that was 

 convened after the organization of the Territorial 

 government declared that all rights in acequias and 

 canals heretofore established should remain undis- 

 turbed; and further declared that the water of all 

 lakes, ponds and streams of running water was pub- 

 lic, and subject to appropriation for irrigation and 

 other beneficial uses. 1 



All, or nearly all, other Territories in the arid re- 

 gion enacted similar statutes. The States which 

 have been organized from those Territories have, by 

 their constitutions, declared that existing appropri- 

 ations of water should be respected and maintained, 

 and have further declared the unappropriated water 

 of all lakes, ponds and running streams within their 

 dominion to be the property of the public or the 

 people, which are synonymous terms, and that it 

 was subject to the use of the people. 



That the right to appropriate it for beneficial pur- 

 poses should never be denied. 



These statutes have generally, if not in all cases, 

 provided that the appropriator should have the ex- 

 clusive control of whatever amount was appropri- 

 ated, with the right to use, consume, lease, loan, sell 

 and convey, subject always to the condition that it 

 was for a beneficial use. 



Whether the use was for a public or private ben- 

 efit was not a material condition, nor was the right 

 to be acquired by the appropriation, diversion and 

 use of the water dependent, in any degree, upon 

 such condition. 



When once appropriated (and, in using this word, 

 I mean legally in its fullest sense by diversion and 

 beneficial use), it remains within the control of the 

 appropriator, his successors or assigns, so long as the 

 beneficial use continues.'- 1 



He controls it, holds it as against all the world, is 

 entitled to the use of it, and to all that may be made 

 or realized from the use of it. 



It is a commodity or possession that he may loan or 

 sell, transfer and convey. 3 His dominion over it is 

 as complete and absolute as any other property, real 

 or personal, of which the fee simple title is in him, so 

 long as the beneficial use continues. 



It is property in every legal aspect, 4 and he will be 

 protected in it by the courts in the same manner as 

 in any other property. 



The constitution of every State in the arid region 

 declares that the title to the water already appropri- 

 ated is in the appropriator, and that the title to the 

 unappropriated water is in the State, the public, the 

 people, and that this may be appropriated in the 

 same manner, and when it is so appropriated the 

 public lose all control of it; in other words, by appro- 

 priation the State is divested of it. 5 Blackstone says 

 that to "appropriate is to alienate". Webster says, 

 to set apart for, or assign to, a particular person or 

 use in exclusion to all others. 



The statutes say, not that the right to the use of the 

 water may be appropriated, but that the water may 

 be appropriated. 



The legislatures must have so interpreted the con- 

 stitutions, because they have not enacted any laws 

 for the control and management of different classes 

 of water appropriations. The title of him who ap- 

 propriated prior to the organization of the State, not- 

 withstanding his rights and ownership are recognized 

 by the State, is in no sense better, more complete or 

 comprehensive than that of the subsequent appropri- 

 ator. The hair-splitting question is, what does this 

 ownership, this proprietary interest, this property 

 right embrace? Is it the water or the right to the use 

 of the water? If the appropriator owns the right to 

 divert, carry, apply, consume and sell the water; if it 

 is a property right that can pass by sale and transfer 

 so as to give the purchaser the right to use, divert at 

 a different place, convey in a different channel, and 

 use in a different place so that it does not interfere 

 with the rights of others, it must be a matter of indif- 

 ference to him who owns the water. 



There can be on the part of the original owner no 

 assertion of any right or attribute pertaining to own- 

 ership after the legal appropriation has been accom- 

 plished, whether it be the State or all mankind. 



The later decisions are recognizing the fact that the 

 statutes confer on the appropriator of water an 

 ownership in it, which, if it does not include the legal 

 title, is equivalent to it, and it has been asserted by 

 the supreme court of at least one State that the dis- 

 tinction (born of the elementary principle that water 



