Arizona republican., 1910-09-29

the land be less than that of the owner in fee, the right of appropria- ton should be likewise limited. So a tenant may not simply, by reason of the relation between himself and his landlord. make an appropriation upon which the landlord may base a right to appropriate And a mere squatters' right to appropriate water is no greater than his right of the occupancy of the land.
 And as the ownership and occu- pancy of land is the basis of the right to appropriate, necessarily it would seem to follow that the right being so dependent, must be appurt- enant to the land-or if not strictly appurtenant cannot be exercised in- dependently of it. For if the owner ship or occupancy of land is the basis of the right to appropriate water from public sources the re- moval of the basis leaves the right without support.
 I am not unaware that this prop osition of the inseparability of the right to use water from the land which was the basis of the right is questioned-but without stopping now to discuss it, because have not here the time to do so, I feel convinced that it will be before long universally recognized. as the tend ency of the decisions of the courts and of legislations seem to indicate. There are. too, some limitations upon the right of appropriation as citizen ship, residence, etc, etc, but they do not need extended notice here.
 As I have before stated, the right to appropriate water can only be lawfully exercised when there is water. the right of appropriation of which has not already vested In others. That is, the right of appro- priation canot be exercised when the right of others to appropriate it has already vested.
 The maxim that those who are first in time are first in right; and hence, the doctrine of the priority of rights.
 It would seem that it canot be dis puted that an appropriator cannot rightfully take of the water from public sources of supply more than he can benefifically use for the pur- pose for which he seeks to appre- priate it. No one can urge with any propriety that water. which is public property. can be appropriated merely to be wasted Such a claim cannot be defended. Hence the doc Urine that the limit of the right to take water is the beneficial use of it that can be made by the appropriat- or And conversely, as the whole motive of our laws relating to the appropriation and use of water is the development of our arid lands to the highest state of productiveness, there should be no limit to the use of wat CT for that purpose by the appropri- ator short of the quantity that may be necessary for the accomplishment of this purpose We find this eX pressed in the national irrigation act. substantially thus: that the meas ure and the limit of the right to use water is beneficial use.
 As we have said. appropriation con sists of an actual taking of water its diversion from its. natural course and its subjection to the possession and use of the appropriator
 The right to appropriate originally is that given by law to any owner or occupant of land to take water for its cultivation.
 His right to continue to appropriate water-to take it-depends upon con- ditions subsequent. He must con- tinue to be the owner or occupant of the lands for which he originally ap the water. He must make beneficial and reasonably constant use of his right to appropriate when these conditions exist; those that we have noted as precedent and those that are subsequent. there becomes vested a right of appropriation'- that is the right to take the water as necessities for its use arise.
 This right vests in the land owner or occupant to be exercised in con nection with such ownership or oc- cupancy.
 The owner or occupant has not an Appropriation of water" he has right of appropriation. He does not own the water-he has right to take and use as much of it as may be reasonably necessary for the culti- vation of his land--neither more or less. This right. of course. is subse quent to the rights of others to like wise take water from the same course. which has heretofore wasted