WATERS. The peculiar nature of run ning water was referred to in one of the old cases holding that ejectment would not lie for a water-course ; that livery could not be made of it, "for non moratur, but is ever flowing," and comparing running water to the water in the sea ; Chancellor v. Thomas, Yelv. 143. "For water is a movable, wan dering thing, and must of necessity continue common by the law of nature" ; 2 Bla. Corn. 18. In 1833, Lord Denman, in Mason T. Hill, 5 B. & Ad. 1, says concerning the civil law: No one had any property in the water itself, except in that particular portion which he might have abstracted from the stream and of which he had the Later the rule was laid down that flowing water is publici juris, not in the sense that it is bonum vacans, to which the first occu pant may acquire an exclusive right, but that it is public and common in this sense only, that none can have any property in the water •itself, except in the particular por tion which he may choose to abstract from the stream and take into his possession, and that during the time of his possession only. But each proprietor of the adjacent land has the right •to the usufruct of the stream which flows through it ; Embrey v. Owen, 6 Exch. 355. That running water is publici juris and that no one could claim the owner ship of the corpus of the water of a stream was held in [1906] A. C. 83; U. S. v. Inv. Co., 156 Fed. 123 ; Philadelphia v. Spring Garden, 7 Pa. 363, per Gibson, C. J.
By the modern as well as the older au thorities, the right of the riparian owner in the water is usufructuary, and consists not so much in the fluid itself as in its uses ; Lux v. Haggin, 69 Cal. 255, 4 Pac. 919, 10 Pac. 674. The law does not recognize a riparian property right in the corpus of the water ; the riparian proprietor does not own the water. He has the right only to enjoy the advantage of a responsible use of the stream as it flows through the land, subject to a like right belonging to all other riparian proprietors ; Crawford Co. v. Hathaway, 67 Neb. 325, 93 N. W. 781, 60 a R. A. 889, 108 Am. St. Rep. 647. Water when reduced to possession is,property, and it may be bought and sold and have a market value ; Nit it must be in actual possession, subject to con trol and management ; Syracuse v. Stacey,
169 N. Y. 231, 62 N.' E. 354. When stored in an artificial appliance or water-course, it is personal property ; Riverside Water Co. v. Gage, 89 Cal, 418, 26 Pac. 889 ; Dunsmuir v. Power Co., 24 Wash. 114, 63 Pac. 1095.
Irrigation. To give security to irrigators, irrigation contracts are generally viewed as having for their subject matter the usufruc tuary right in the stream through the in termediate agency of the ditch, thereby mak ing them contracts affecting real property— the ditch and the water right in the stream through which the ditch heads. A contract granting a right to take water from a ditch for irrigation is held to grant a servitude upon real property, upon the canal and water rights of the grantor, Stanislaus W. Co. v. Bachman, 152 Cal. 716, 93 Pac. 858, 15 L. R. A. (N. S.) 359. The arid states have settled it as a fixed rule, aside from contract, that one who has a right to take water from a ditch is an appropriator from the natural stream through the intermediate agency of the ditch; Wheeler v. Irr. Co., 10 Colo. 582, 17 Pac. 487, 3 Am. St. Rep. 603 ; Hard v. Land Co., 9 Idaho 589, 76 Pac. 331, 65 L. R. A. 407 ; Gould v. Canal Co., 8 Ariz. 429, 76 Pac. 598. Rights in a flow in a ditch thus relate back to the same subject matter when concerning irrigation, though the distinction between the corpus of the water and its use and flow would still prevail in such matters as larceny from a ditch or contract for house supply in cities ; see 22 Harv. L. Rev. 212.
Under the doctrine of prior appropriation, a sale of water right separate from the land, whereby the water is applied to other lands, may be made if the rights of others are not infringed; Cache La Poudre Irr. Co. v. Res ervoir Co., 25 Colo. 144, 53 Pac. 318, 71 Am. St. Rep. 123. The users of the water from a canal or ditch acquire such a property right as they may transfer to other lands under such ditch or canal ; Hard v. Land Co., 9 Idaho 589, 76 Pac. 331, 65 L. R. A. 407. Such a right ou the part of the landowner cannot be doubted ; Winchell v. Clark, 68 Mich. 64, 35 N. W. 907.