State, Dept. of Parks v. IDAHO DEPT, WATER ADMIN.

I join in the dissent of Justice McFadden, but feel compelled to address myself to an issue which was not passed upon in his dissent. I do not agree with the majority’s position that there may be created a valid appropriative water right in the absence of an actual physical diversion of the water from its natural locus or condition.

A diversion is generally required in order to perfect water rights by appropriation.1 Hutchins in his treatise on water rights in the western states2 quotes with approval the following language from a California case,

“To constitute a valid appropriation of water,…