waters

water `[a]s found in streams and bodies forming geographical features such as oceans, rivers, [and] lakes,'" "ante," at 732 (quoting Webster's Second 2882)—the dissent is correct to observe that an intermittent flow can constitute a stream, in the sense of "`[a] current or course of water or other fluid, flowing on the earth,'" "ante," at 733, n. 6 (quoting Webster's Second 2493), while it is flowing.

The peculiar nature of running 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, wandering thing, and must of necessity continue common by the law of nature”; 2 Bla. Com. 18. In 1833, Lord Denman, in Mason v. 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 possession Later the rule was laid down that flowing water is publici juris, not in the sense that it is bunum varans, to which the first occupant 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 portion 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, 0 Exeli. 355. That running water Is public i juris and that no ohe could claim the ownership 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 authorities^ 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 proprietors; Crawford Co. y. Hathaway, 67 Neb. 325, 93 N. W. 781, 60 L. 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; but it must be in actual possession, subject to cor\troi 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 Cai. 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 usufructuary right in the stream through the intermediate agency of the ditch, thereby making 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.) 339. The arid states have settled it as a fixed rule, aside from contract, that one who has a right to take waier 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. 4S7, 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 ilow 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 Mow 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. Reservoir 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 D U. A. 407. Such a right on the part of the landowner cannot be doubted; Wiuchell v. Clark, 68 Mich. 64, 35 X. W. 907. In the arid states, the coimnou law doctrine of riparian rights has been repudiated and the law of appropriation prevails. It has been there established as a rule of property governing riparian land that mere priority of occupation or appropriation gives rights superior to those of the riparian owner in the beneficial use of the waters and the beds of streams, whether such appropriation is made upon, or adjacent to, riparian lauds as such are defined in the common law, are lost by such appropriation. But, generally speaking, the riparian right law does not prevail in those jurisdictions. The custom of appropriation became a law * of property in tjiose states, and as such has been confirmed by congress and the federal supreme court, as applicable to lands there situated, the rule of law having been established by the local jurisdictions and having become the common law of those states through adjudications of their own courts; Act Cong. July 26, 1S66; Lux v. Haggin, 69 Cal. 255, 4 Pac. 919, 10 Pac. 674; Simmons v. Winters, 21 Or. 35, 27 Pac. 7, 28 Am. St Rep. 727; Isaacs v. Barber, 10 Wash. 124, 38 Pac. 871, 30 L. R. A. 665, 45 Am. St. Rep. 772; Ft. Morgan L. & C. Co. v. Ditch Co., IS Colo. 1, 30 Pac. 1032, 36 Am. St. Rep. 259; Boquallis L. & C. Co. v. Curtis, 213 U. S. 339, 29 Sup. Ct. 493, 53 L. Ed. 822; U. S. v. Irrig. Co., 174 U. S. 690, 19 Sup. Ct. 770, 43 L. Ed. 1136. Although this power of changing the common law rule as to streams within its dominion undoubtedly belongs to each state, yet two limitations must be recognized: First, that in the absence of specific authority from congress a state cannot by its legislation destroy the right of the United States as the owner of lands bordering on a stream to a continued flow of its waters, so far, at least, as may be necessary for the beneficial uses of the government property. Second, that it is limited by the superior power of the general government to secure the uninterrupted navigability of all navigable streams within the limits of the United States. In other words the jurisdiction of the general government over interstate commerce and its natural highways vests in that government the right to take all needed measures to preserve the navigability of all navigable water-courses of the country, even against any state action; Kansas v. Colorado, 206 U. S. 46, 27 Sup. Ct. 655, 51 L. Ed. 956. One who diverts water from a stream for domestic and irrigation purposes must, in order to protect his appropriation, use a reasonable degree of care to prevent loss by evaporation and seepage in conveying it to the place of use, since the law will not countenance a diversion of a volume many times greater than that which is actually consumed; Sterling v. Ditch Extension Co., 42 Colo. 421, 94 Pac. 339, 15 L. R. A. (N. S.) 238. While a prior appropriator of water can claim only the amount which is necessary to supply his needs, and can permit no water to go to waste, he is not bound to ddopt the best means for utilizing the water or take extraordinary precautions to prevent waste. He is entitled to make a reasonable use of the water according to the custom of the locality, and so long as he does so other ator should bb determined by reference to the system used, although it results in a waste of water which might be avoided by the adoption of another system; 3 Farn. Waters & Water Rights 675; Rodgers v. Pitt, 89 Fed. 420. But where an appropriation has been made, and the original method of conveying the water was direct and economical, a change of method whereby the waste is materially increased cannot be made, to the detriment of a subsequent appropriator; Roeder v. Stein, 23 New 92, 42 Pac. 867. He is not liable for water lost by absorption and evaporation, which is necessarily so lost in a well constructed ditch or flume which is kept in good condition; Barrows v. Fox, 98 Cal. 63, 32 Pac. 811; Sterling v. Ditch Extension Co., 42 Colo. 421, 94 Pac. 339, 15 L. R. A. (N. S.) 23S. The most essential element of an appropriation of water is application to a beneficial purpose; North Fork Water Co. v. Medland, 187 Fed. 163. Submerged Land. When land is gradually submerged by' a river the former owner retains no rights in it, and the owner of the river bed acquires the absolute title; Wallace v. Driver, 61 Ark. 429, 33 S. W. 641, 31