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Acquisition of Existing Water Rights

Jack F. Ross, Proceedings of 13th Annual Rocky Mountain Mineral Law Institute (1967)

The goal of this paper is to survey procedures by which a water acquisition program can be most effectively achieved, and to expose some of the difficulties likely to be encountered in implementing such a program.

[478] EVIDENCE OF EXISTENCE

Once the client's needs are known and the rights which may fulfill those needs appear to be available for acquisition, evidence of the existence and validity of those rights must be sought. Nowhere in the law of property does the maxim, caveat emptor, apply with such force as it does in the area of water rights. To understand the approach that must be taken in making the necessary determinations, a basic understanding of the nature of the rights themselves is necessary.

Property Rights

Water rights are recognized everywhere in the west as property rights, whether they exist independent of, or as a part of the land.1 They are usufructuary rights only, and do not represent ownership in the corpus of flowing waters, but rather only the right to make use of a portion of them.2 Once reduced to possession by the exercise of the right, however, the waters are considered personalty.3

As with other interests in property, water rights may be subject to use by contract, and water supplies are often developed under contract between the water users themselves and those who hold legal title to the rights. Th