Thus, a tenant who appropriates water even with the knowledge or acquiescence of a landlord has a separate and distinct right to the water from that of the landlord so long as the tenant is not acting as the landlord's agent. See id. ; see also Joyce Livestock Co.v.United States , 144 Idaho 1, 18, 156 P.3d 502, 519 (2007). Here, the language of the license is unambiguous and originally identified St. Maries as the owner of the water right. As noted above, land ownership is not a requirement to obtain a water right. Instead, a valid water right can arise where the appropriator has lawful access.
When interpreting a conveyance of property, "[u]nless [appurtenant water rights] are expressly reserved in the deed or it is clearly shown that the parties intended that the grantor would reserve them, appurtenant water rights pass with the land even though they are not mentioned in the deed and the deed does not mention ‘appurtenances.’ " Joyce Livestock Co. v. United States , 144 Idaho 1, 14, 156 P.3d 502, 515 (2007) (citing Silverstein v. Carlson , 118 Idaho 456, 797 P.2d 856 (1990) ). If a share in a mutual irrigation company represents a discrete water right appurtenant to a specific tract of land, it follows that the share would pass as an appurtenance to that specific tract of land under Joyce Livestock . However, shares representing the right to delivery of water from a mutual irrigation company's water right present an altogether different problem.
The Late Claims thus required proof "with definite evidence" that the claimed water was actually diverted and beneficially used at that time. City ofPocatello , 152 Idaho at 841–42, 275 P.3d at 856–57 ; accord Joyce Livestock Co. v. United States , 144 Idaho 1, 8, 156 P.3d 502, 509 (2007) ("The two essentials for obtaining a water right under the constitutional method were typically diversion and application to a beneficial use."). This analysis is "focused purely on the actions of the appropriator[.]"
The Late Claims thus required proof "with definite evidence" that the claimed water was actually diverted and beneficially used at that time. City of Pocatello , 152 Idaho at 841–42, 275 P.3d at 856–57 ; accord Joyce Livestock Co. v. United States , 144 Idaho 1, 8, 156 P.3d 502, 509 (2007) ("The two essentials for obtaining a water right under the constitutional method were typically diversion and application to a beneficial use."). This analysis is "focused purely on the actions of the appropriator[.]"
The first requirement is that "the seizure has been directly necessary to secure an important governmental or general public interest." A water right "does not constitute ownership of the water," Joyce Livestock Co. v. United States, 144 Idaho 1, 7, 156 P.3d 502, 508 (2007). All waters within the state when flowing in their natural channels and all ground waters are property of the State. Idaho Code §§ 42-101 42-226.
In subcase number 45-13793 the Bedkes claimed a .23 cfs water right with a priority date of April 1, 1964. The Bedkes urge that the district court erred in adopting the special master's finding that the holding from SRBA presiding judge John M. Melanson's August 3, 2005 Memorandum Decision and Order on Challenge in subcase 55-10135 (later affirmed in pertinent part by this Court in Joyce Livestock Co. v. U.S., 144 Idaho 1, 8, 156 P.3d 502, 509 (2007)), is inapplicable to this case. That holding states that no physical diversion is required in order to acquire a water right for instream stock watering use.
In subcase number 45-13793 the Bedkes claimed a .23 cfs water right with a priority date of April 1, 1964. The Bedkes urge that the district court erred in adopting the special master's finding that the holding from SRBA presiding judge John M. Melanson's August 3, 2005 Memorandum Decision and Order on Challenge in subcase 55-10135 (later affirmed in pertinent part by this Court in Joyce Livestock Co. v. U.S., 144 Idaho 1, 8, 156 P.3d 502, 509 (2007)), is inapplicable to this case. That holding states that no physical diversion is required in order to acquire a water right for instream stock watering use.
JOYCE LIVESTOCK COMPANY, petitioner, v. UNITED STATES.LU Ranching Company, petitioner, v. United States.Case below, 144 Idaho 1, 156 P.3d 502; 144 Idaho 89, 156 P.3d 590. Petition for writ of certiorari to the Supreme Court of Idaho denied.
And in 2007, the Idaho Supreme Court ruled in favor of federal grazing permittees that objected to the United States' stockwater claims. See Joyce Livestock Co. v. United States, 144 Idaho 1, 156 P.3d 502 (2007). About ten years later, the Idaho Legislature revised the Idaho Code to clarify and refine the stockwater laws in light of Joyce Livestock.
This Court recognized that appurtenance is not dependent upon a "physical relationship" with the land. See Joyce Livestock Co. v. United States , 144 Idaho 1, 12, 156 P.3d 502, 514 (2007). Further, there has been some recognition by the United States Supreme Court in granting reserved water rights in water that were not directly located on tribal-owned land.