Title: Notes on Water Rights From "Waters and Water Rights"
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Permanent Link: http://ufdc.ufl.edu/WL00004496/00001
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Title: Notes on Water Rights From "Waters and Water Rights"
Physical Description: Book
Language: English
Publisher: Waters and Water Rights
Spatial Coverage: North America -- United States of America -- Florida
Abstract: Jake Varn Collection - Notes on Water Rights From "Waters and Water Rights" (JDV BOX 86)
General Note: Box 22, Folder 6 ( Notes From Cases on Water Rights - 1975 ), Item 3
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Volume ID: VID00001
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on the other hand, references in the statutes, if any, are usually
to water power, thus reflecting regional differences in uses of
water. But in most states, tax statutes are silent on the subject.
Tax statutes generally define the term "real property" to
include "all rights and privileges belonging or in anywise per-
taining thereto" or words of similar import.33 In some states
"real property" means all lands and improvements thereon with-
out further elaboration.34 The problem, then, is whether a
riparian or an apppropriative right falls within these definitions
in those states where no special provision for water rights or
water power is found.

A riparian right has been characterized as a right "inherent
in the riparian land and part and parcel of it, an inherent result
of the relative position of the land to the stream as a natural
resource."'3 Thus, whether a riparian right is narrowly viewed
as a right to use the water on the land abutting the stream,
but only within the confines of the watershed of the stream from
which the water is diverted,36 or is extended to permit use even
beyond the watershed,37 it would be a part of the real property
itself since the ownership of the riparian land gives rise to
the right. There is no reason to treat this right differently from
other rights pertaining to the ownership of real property. It
appears, therefore, that a definition of "real property" which
includes "land" without more would be sufficient for tax pur-
33 E.g., Ala. Code 1958, Tit. 51, 21; Mich. Stat. Ann., 7.2; S. Car.
Code 1962, 65-1501; Tex. Rev. Civ. Stat. Ann., Art. 7146.
34 Cal. Rev. & Tax Code, 104; Mass. Gen. Laws Ann., ch. 59, 2. '.
3s 1 Wiel, Water Rights in the Western States, p. 777 (3d ed. 1911).
Accord: Harris v. Brooks, 225 Ark. 436, 283 S.W.2d 129 (1955); Rancho
Santa Margarita v. Vail, 11 Cal. 2d 501, 81 P.2d 533 (1938).
36 In Rancho Santa Margarita v. Vail, supra note 35, the court con-
fined the riparian right to the use of water upon land within the water-
shed of the stream from which the water was diverted and also restricted
the right to the smallest riparian tract under one title in the chain of
title leading to the present owner. Other cases accepting these limitations
are Crawford Co. v. Hathaway, 67 Neb. 325, 93 N.W. 781, 60 L.R.A.
889, 108 Am. St. Rep. 647 (1903); Watkins Land Co. v. Clements, 98 Tex.
578, 86 S.W. 733, 70 L.R.A. 964, 107 Am. St. Rep. 653 (1905).
37 In several cases the riparian right has been extended beyond the
watershed so long as the land is held under one title. E.g., Clark v. Alla-
man, 71 Kan. 206, 80 Pac. 571, 70 L.R.A. 971 (1905); Jones v. Conn, 39
Ore. 30, 64 Pac. 855, 65 Pac. 1068, 87 Am. St. Rep. 634, 54 L.R.A. 630


poses to include riparian rights. If there is a paucity of cases
on this point, it must be because the characterization is hardly
subject to dispute. The few cases that have been discovered
sustain this conclusion.38
The right to divert percolating ground water, whether under
the absolute-ownership,39 reasonable-use,40 or correlative-
rights4' doctrine, should be similarly characterized as real prop-
erty since the right inheres in the ownership of the land over-
lying a water basin. The fact that the water may be diverted
for nonoverlying uses under the absolute-ownership doctrine
should not make any difference.
Very few states which recognize riparian rights have special
provisions with respect to this problem. In Florida a statute
expressly provides that riparian rights shall not be separately
assessed but that the value of the rights shall be included in
the assessed value of the land.42 Several states achieve a similar
result by requiring the value of the land to include water privi-
leges.43 Kansas44 and Nebraska48 have defined real property
38 See City & County of San Francisco v. Alameda County, 5 Cal. 2d
243, 54 P.2d 462 (1936); Spring Valley Water Co. v. Alameda County,
24 Cal. App. 278, 141 Pac. 38 (1914); Shawmut Mfg. Co. v. Town of
Benton, 123 Maine 121, 122 Atl. 49 (1923); State v. Minneapolis Mill Co.,
26 Minn. 229, 2 N.W. 839 (1879); Winnipiseogee Lake Cotton & Woolen
Mfg. Co. v. Town of Gilford, 64 N.H. 337, 10 Atl. 849 (1887).
39 Under the absolute-ownership doctrine, the overlying owner may use
the water for any beneficial purpose, on or off the overlying land, without
regard to the effect upon his neighbors. E.g., City of Corpus Christi v.
City of Pleasanton, 154 Tex. 289, 276 S.W.2d 798 (1955).
40 The reasonable-use doctrine cannot be defined with certainty, but
it probably restricts the use of ground water to overlying land when the
overlying landowners need the water. Whether the overlying landowner
may use the water without regard to injury to his neighbor so long as he
uses it for beneficial purposes is unclear. Compare Bristor v. Cheatham,
75 Ariz. 227, 255 P.2d 173 (1953) with MacArtor v. Graylyn Crest III
Swim Club Inc., 41 Del. Ch. 26, 187 A.2d 417 (1963).
41 In California, where the correlative-rights doctrine was born, the
overlying landowner is restricted to use upon overlying land and to such
amount as is reasonable considering the needs of other overlying land-
owners, and in the event of shortage each owner is restricted to an allocated
quantity. E.g., City of Pasadena v. City of Alhambra, 33 Cal. 2d 908, 207
P.2d 17 (1949).
^* tat., 192.61.-
43 Hawaii Rev. Laws 1955, 128-9; Mich. Stat. Ann., 7.27 (water power
and water privileges); N. Car. Gen. Stat., 105-295 (water power and
water privileges) ; Wis. Stat. Ann., 70.32.
44 Kan. Stat. Ann. 1963, 79-102.
45 Neb. Rev. Stat., 77-103.


to include "mineral springs and wells" in addition to other rights
and privileges appertaining to the land. "Water power" and
"shore privileges and rights" are within the definition of real
property in Maine.46 New Hampshire47 has a provision making
water power taxable as real property. Oregon makes clear that
water rights and water power are real property.48

An appropriative right, although not dependent upon owner-
ship of any land, has been classified as real property for tax
purposes;49 this appears consistent with such designation for
other purposes, such as quiet-title actions or the statute of
frauds.50 In California, the court has held that an appropria-
tive right is "land" under a constitutional provision regulating
the exemption of public property."' The prevalent reasoning
is that an appropriative right is appurtenant to real property
and hence taxable as real property, and the courts have not been
troubled by a definition of real property which does not expressly
include "rights and privileges appertaining thereto."62
Litigation has more often centered around the situs of the
water right or water power, that is, whether the right should
be taxed at the place of diversion or storage or at the place
where water or water power is used, and the parties appear
not to have disputed the characterization as real property.53
Only in Montana has an appropriative right been treated

46 Maine Rev. Stat. Ann. 1964, Tit. 36, 551.
47 N.H. Rev. Stat. Ann., 72:8.
48 Ore. Rev. Stat., 307.010. To the extent that riparian rights remain in
Oregon, this statute would be applicable to them.
49 Andrews v. North Side Canal Co., 52 Idaho 117, 12 P.2d 263 (1932).
In some eastern states where mill privileges are recognized and protected
in terms of priority of use (see Blackstone Mfg. Co. v. Town of Blackstone,
200 Mass. 82, 85 N.E. 880, 18 L.R.A.(N.S.) 755 (1908); Slatersville
Finishing Co. v. Greene, 40 R.I. 410, 101 Atl. 226, L.R.A. 1917F 585
(1917)). These rights are taxed as part of the real property. E.g., Penob-
scot Chemical Fibre Co. v. Town of Bradley, 99 Maine 263, 59 Atl. 83
(1904); Saco Water Power Co. v. Inhabitants of Buxton, 98 Maine' 295,
56 Atl. 914 (1903).
so 1 Wiel, Water Rights in the Western States, p. 299 (3d ed. 1911).
s E.g., North Kern Water Storage Dist. v. Kern County, 179 Cal. App.
2d 268, 3 Cal. Rptr. 636 (1960).
5s E.g., State ex rel. State Tax Comm. v. San Luis Power & Water Co.,
51 N.M. 294, 183 P.2d 605 (1947).
sa Ibid. ..


as personal property for property tax purposes. The term "real
estate" was defined in the statute to include possession or
ownership of, or claim or right to, land and all rights and
privileges appertaining thereto. The court reasoned that a water
right was wholly an intangible thing and was not a right or a
claim to land.64 But the conclusion in that case that a water
right is personal property has been cast in doubt by a subse-
quent case appearing to have held that, where a water right is
appurtenant to land, the right is taxed with the land.5"
A water right is undoubtedly unique. It has much the same
characteristics as an easement, but an easement is a non-
possessory right segregated from the bundle of rights encom-
passed within the concept of ownership of land or improvements
and is referable to a physical, identifiable thing. On the other
hand, the corpus of water in the stream is temporal and is not
subject to ownership. This latter characteristic also distin-
guishes a water right from a profit a prendre.56
While the Montana court is correct in its observation that
a water right is intangible and is merely a creature of the law,
all concepts of legal relationship to a tangible thing are abstrac-
tions and to label a water right as an intangible does not advance
the analysis. Perhaps the answer is, as one author has con-
cluded, that "the right to flow and use of water, being a right
in a natural resource, is real estate" and to that might be added,
a natural resource of the land."7 The odd aspect of the Mon-
tana case is that the court could have reached the conclusion
that a water right was taxable at the situs of the principal
works as an appurtenance thereto; instead, the court reached
the same result by classifying a water right as personal property
which was taxable, under a statute, at the principal works of a
water company.
If an appropriative right is acquired under a permit or a
license from the state, the argument might be made that an
appropriative right is a mere franchise and should be treated
as an intangible. This contention, however, is only superficially
attractive. A license to appropriate represents a right to utilize
the water resources of the state. It is representative of a right
or an interest in natural resources. If it is to be compared with
'4 Helena Waterworks Co. v. Settles, 37 Mont. 237, 95 Pac. 838 (1908).
Brady Irrig. Co. v. Teton County, 107 Mont. 330, 85 P.2d 350 (1938).
66 Compare 1 Wiel, Water Rights in the Western States, p. 900 (3d
ed. 1911).
"7 Id., at p. 298.

72.1 (B)

S- --* -,


a franchise, it is more analogous to a franchise to lay pipes in
the streets, in effect an easement, than to a franchise to exist as
a corporation or to engage in a particular type of an activity.
Moreover, examination of the history behind the permit or
licensing requirements leads to the conclusion that a permit or
license is merely a device to control the acquisition of appropria-
tive rights to make the optimum use of a limited resource;sa
once a permit or license is acquired, the right thereunder is little
distinguishable in its fundamental aspects from an appropria-
tive right acquired without any administrative control. If any
condition has been imposed on the permit or license by the ad-
ministrative agency,"9 such condition would be relevant to the
value of the right and not to the nature of the interest acquired.
Consequently, an argument characterizing an appropriative
right as an intangible appears faulty.
It would seem that a riparian right severed from the riparian
land by reservation or conveyance should be taxed as real prop-
erty, whether treated as a riparian right or analogized to an
appropriative right. A prescriptive right to a streamflow or
percolating ground water or an appropriative right to ground
water should require no different conclusion.
In some states a statutory guide is provided for the treat-
ment of appropriative rights. In Colorado, water rights are
included within the definition of an "improvement."60 New
Mexico makes the water right appurtenant to the land served.6'
Oregon62 and Wyoming63 explicitly provide that water rights
are real property.
Another problem is whether an incipient right is or can be
taxed. In Colorado, on application of the water to beneficial
uses, the priority of appropriation relates back to the time of
commencement of the efforts to appropriate, provided that the
appropriator has applied himself diligently to the task.64 In

*8 See Wyoming Hereford Ranch v. Hammond Packing Co., 33 Wyo. 14,
236 Pac. 764 (1925).
9 A license to appropriate water for hydroelectric generation may be
made subject to divestment when water becomes necessary for municipal
needs. See, e.g., In re Applications 14875, etc., Cal. St. Water Rts. Bd. Dec.
No. D 978 (1960).
0 Colo. Rev. Stat. 1963, 137-1-1(2) and (5), as enacted Sess. Laws
1964, ch. 94, 1.
*'N. Mex. Stat. Ann. 1953, 72-2-2.
62 Ore. Rev. Stat., 307.010.
03 Wyo. Stat. Ann. 1957, 39-279.
*4 E.g., City & County of Denver v. Northern Colorado Water Con-



Montana, the date of priority can be related back to the posting
of notice.6s And in the states requiring an application to be
filed with an administrative agency, the priority may be related
back to the date of filing of the application.66 Thus, a person
who has initiated steps to acquire an appropriative right but
has not completed the process during any given taxable year
might have something of value. On the other hand, where the
administrative agency passing upon the applications has discre-
tion to deny them if the contemplated use is not in the public
interest,67 an unapproved application should not be classified as
a property interest.
The only case on this problem is Tuolumne County v. State
Board of Equalization.68 In this case the City and County of
San Francisco had received an assignment of whatever rights
certain private parties had under a notice posted to commence
appropriation. Before the appropriative right was perfected, a
constitutional amendment removed from the property tax ex-
emption "lands located outside the county, city and county
or municipal corporation owning the same as were subject
to taxation at the time of the acquisition of the same by said
county, city and county or municipal corporation."69 The
court, thus faced with the issue whether the incipient rights
pertaining to the posting of notice were taxable, concluded that
the posting was an important property right because it deter-
mined the priority of the perfected right. Perhaps this conclu-
sion is understandable since the resolution of the issue would
have determined forever the taxable status of the perfected
appropriative right.69a On the other hand, where the unique issue

servancy Dist., 130 Colo. 375, 276 P.2d 992 (1954); Metropolitan Suburban
Water Users Assn. v. Colorado River Water Conservation Dist., 148 Colo.
173, 365 P.2d 273 (1961).
66 Mont. Rev. Codes 1947, 89-812. But a compliance with the notice
procedure is not essential to securing an appropriative right. Clausen
v. Armington, 123 Mont. 1, 212 P.2d 440 (1949).
66 E.g., Cal. Water Code, 1450; Wyo. Stat. Ann. 1957, 41-212.
67 An application might be denied because there is no unappropriated
water or because its approval will not be in the public interest. E.g., Cal.
Water Code, 1255-1257, 1375; Nev. Rev. Stat., 533.370; Utah Code
Ann. 1953, 73-3-8; Wyo. Stat. Ann. 1957, 41-203.
68 Tuolumne County v. State Board of Equalization, 206 Cal. App. 2d
352, 24 Cal. Rptr. 113 (1962).
69 Cal. Const., Art. XIII, 1.
69a In Amador County v. State Board of Equalization, 240 Cal. App. 2d
-, 49 Cal. Rptr. 448 (1966), the court held that a utility district did not


under the constitutional exemption is not present, the right
would become taxable, at least, when perfected. In the usual
situation one might speculate that the assessor does trouble him-
self with difficult problems of valuation of incipient rights by
taxing them.

72.2 Characterization of dams, canals, flumes, pipes, etc.
Because dams, canals, flumes, and aqueducts are improve-
ments upon the land, one would expect them to be characterized
as real property for tax purposes. They would easily fit the
description of "improvements" or even "real property" without
further elaboration.70 Cases or statutes71 have usually dealt
with the problem of their situs or separate assessment and
have not questioned their characterization.
Pipes laid in the ground command far less unanimity. Many
states having statutes expressly dealing with the subject matter

have a taxable water right since it had acquired its right through its
application, even though earlier applications of private parties had been
displaced by the district's municipal preference.
7o E.g., State ex rel. Sedalia Water Co. v. Harnsberger, 322 Mo. 94, 14
S.W.2d 554 (1928) (water mains deemed appurtenant to water plant under
a statute defining real property to include other property pertaining there-
to); Joplin Waterworks Co. v. Jasper County, 327 Mo. 964, 38 S.W.2d 1068
71 E.g., Ariz. Rev. Stat. Ann. 1956, 42-233 (irrigation ditches wholly
owned by persons using all the water supplied thereby on their own lands
are to be assessed as part of the land; but other ditches are to be assessed
at the place situated); Colo. Const., Art. X, 3 (ditches, canals, and flumes
owned by persons irrigating their own land are to be assessed as part of
the land), but compare Colo. Rev. Stat., 137-2-1, as enacted by Sess.
Laws 1964, ch. 94, 1 (granting exemption for such property); Mont. Rev.
Codes 1947, 84-427 (electric light lines, canals, flumes and ditches
are to be taxed where situated); N. Mex. Stat. Ann. 1953, 72-2-2 (dams,
reservoirs, tanks, canals and similar structures used for irrigation or
stock watering in the state are appurtenant to land served and not to be
assessed separately); N.Y. Real Prop. Tax, 566 (dam sites, dams, and
reservoirs are to be taxed where situated).
In an early case, the court held that the dam which the taxpayer had
built in connection with a franchise to improve a stream for the running
of logs could not be taxed as real property. Yellow River Improvement Co. v.
Wood County, 81 Wis. 554, 51 N.W. 1004 (1892). The reason given for this
strange conclusion was that the sale of the dam for nonpayment of taxes
would amount to an assignment of the franchise since the buyer would be
able to operate the dam. The court did not indicate, however, whether the
dam should be forever exempt from any execution sale or how the dam
should be taxed.

1 ^ ~* 1, s

.- *J
:. : TAX PROBLEMS 75.1

of the tax levy. If payment of the tax is not a prerequisite to
the contest, it will be possible for the taxpayer to pay such
taxes as he deems proper and then contest the remainder.'4 A
separate assessment may also alleviate the burden on the owner
of an interest in real property which is less than a fee since
he may be able to pay a tax on his interest alone in order to
protect it from a tax sale.'"
Another issue which is interrelated with the above is whether
an interest in question will be taxed with one property or an-
other. For example, an appurtenant easement may be taxed as
part of the dominant estate, or the servient estate might be
valued as if there were no burden on it. The resolution of this
problem will determine the extent of the burden upon the
holder of the easement to protect his interest.16
Probably the most important consequence of a separate as-
sessment of a given property interest is with respect to valu-
ation and possible duplication of values. For example, an appro-
priative right which is appurtenant to the land irrigated might
be valued quite differently if it were separately assessed rather
than being merged with the land served. Again, if the storage
and distribution facilities were separately assessed rather than
being merged with the land served, there might be a difference
in the total assessed value. These matters will be taken up in
this section.

75.1 Separate assessment of water rights .
A riparian right, as the discussion in subdivision 72.1 (A)
has shown, is deemed a part and parcel of the land and is a
right inhering in the ownership of the riparian land. An assess-
ment of the riparian land should include the value of the land
with all of its incidents. In Spring Valley Water Co. v. Alameda

14 E.g., State ex rel. Sedalia Water Co. v. Harnsberger, 322 Mo. 94, 14
S.W.2d 554 (1928).
ts Hill v. Williams, 104 Md. 595, 65 Atl. 413 (1906); Hunt v. City of
Boston, 183 Mass. 303, 67 N.E. 244 (1903) (cases holding that a tax sale
of real property for delinquent taxes under a single assessment eliminates
any interest therein held by third parties).
See, e.g., Alamogordo Improvement Co. v. Prendergast, 43 N.M. 245,
91 P.2d 428, 122 A.L.R. 1277 (1939); Ross v. Franko, 139 Ohio St. 395, 40
N.E.2d 664 (1942); Union Falls Power Co. v. Marinette County, 238 Wis.
134, 298 N.W. 598, 134 A.L.R. 958 (1941) (cases holding that an easement
was included in the assessment of the dominant estate).


County," the assessment of riparian rights separate from the
S riparian lands was deemed erroneous because there was no show-
ing that the riparian lands were assessed without the water
rights and, if the riparian lands were fully assessed, separate
assessment of the water rights would result in double taxation.'*
Florida has expressly provided by statute that riparian rights
shall not be taxed separately but must be included in the value
of the land.'9
In California, the constitution withholds an exemption for
"lands" acquired by certain public entities if they are situated
outside the acquiring entity and if they were subject to taxation
at the time of acquisition.20 Under this constitutional provision
it has been held that "lands" include appropriative rights.21
These water rights are subject to a separate assessment.22 How-
ever, in other cases where the issue has been raised collaterally
to determine whether the requisite taxes have been paid to
establish a prescriptive right, the court has indulged in the
presumption that the land was taxed with the appurtenant water
right.23 The general provisions of the California Revenue and
Taxation Code define "real property" to include "possession of
... land"24 and, if "land" in this context also includes appropria-
tive rights, it would seem that appropriative rights should be
separately assessed.25

Spring Valley Water Co. v. Alameda County, 24 Cal. App. 278, 141
Pac. 38 (1914).
18 See also City & County of San Francisco v. Alameda County, 5 Cal.
2d 243, 54 P.2d 462 (1936); Shawmut Mfg. Co. v. Town of Benton, 123
Maine 121, 122 Atl. 49 (1923); Saco Watei Power Co. v. Inhabitants of
Buxton, 98 Maine 295, 56 Atl. 914 (1903).
19 Fla. Stat. Ann., 192.61.
20 Cal. Const., Art. XIII, 1.
21 City & County of San Francisco v. Alameda County, 5 Cal. 2d 243,
54 P.2d 462 (1936); Waterford Irrig. Dist. v. Stanislaus County, 102
Cal. App. 2d 839, 228 P.2d 341 (1951).
22Alpaugh Irrig. Dist. v. Kern County, 113 Cal. App. 2d 286, 248
P.2d 117 (1952). See also Tuolumne County v. State Board of Equalization,
206 Cal. App. 2d 352, 24 Cal. Rptr. 113 (1962); North Kern Water Storage
Dist. v. Kern County, 179 Cal. App. 2d 268, 3 Cal. Rptr. 636 (1960).
2 Coonradt v. Hill, 79 Cal. 587, 21 Pac. 1099 (1889); Frederick v.
Dickey, 91 Cal. 358, 27 Pac. 742 (1891).
24 Cal. Rev. & Tax Code, 104.
s2 See Cal. Rev. & Tax. Code, 601, 602. See also cases cited in note
22 supra, which have placed the situs of the appropriative right at the
point of diversion. If an appropriative right is to be taxed at the place
of diversion, it would seem that its separate assessment is unavoidable.



Colorado has a statute providing that "improvements' in-
clude water rights" and that "improvements" are to be assessed
separately from the land except that, where land is used exclu-
sively for agricultural purposes, the land, water rights, and im-
provements are to be valued as a unit.27
Connecticut has a fairly detailed statute directing how and
where water power is to be taxed. So long as the water power
is used in the state, it is not subject to separate assessment,28
but if the water power developed in the state is used outside
the state, separate assessment is required.29
The Massachusetts court, placing the situs of water power
at the place of use, has held that water power cannot be taxed
Separate assessment of a water right has been permitted in
New Hampshire when the water right has been severed from the
riparian land.31
New Mexico has a statute which provides, "Dams, reservoirs,
tanks, canals, and similar structures used for irrigation or stock
watering purposes, water rights and private roads, shall for the
purpose of assessment be considered appurtenances to the land
they serve in New Mexico, and shall not be separately assessed,
but their value shall be included in the value of the land which
they serve."32 Even prior to the enactment of this provision, an
appropriative right was deemed appurtenant to the land where
the water was used.33
Water rights for irrigation of lands within the state, owned
and used in effect by the same persons, are immune from

so Colo. Rev. Stat. 1963, 137-1-1(5), as enacted by Sess. Laws 1964,
ch. 94, 1.
27 Colo. Rev. Stat. 1963, 137-5-5, as enacted by Sess. Laws 1964, ch. 94,
1. See Shaw v. Bond, 64 Colo. 366, 171 Pac. 1142 (1918).
28 Conn. Gen. Stat. Ann. 12-77, 12-78, as amended.
29 Conn. Gen. Stat. Ann. 12-79.
so Crocker-McElwain Co. v. Holyoke Board of Assessors, 296 Mass. 338,
5 N.E.2d 558; 108 A.L.R. 821 (1937); Essex Co. v. City of Lawrence, 214
Mass. 79, 100 N.E. 1016 (1913).
3a Newmarket Mfg. Co. v. Town of Nottingham, 86 N.H. 321, 168 Atl.
892 (1933). Winnipiseogee Lake Cotton & Woolen Mfg. Co. v. Town of
Gilford, 64 N.H. 337, 348, 10 Atl. 849 (1887) shows where the assessor
assessed the dams, gates, flowage, and reservoir rights in a single assess-
a3 N. Mex. Stat. Ann. 1953, 72-2-2.
33 State ex rel. State Tax Comm. v. San Luis Power & Water Co., 51
N.M. 294, 183 P.2d 605 (1947) (public utility property involved).

---------- I I


separate assessment under the constitution in Utah.34 Where
the constitutional provision does not apply, separate assessment
of an appropriative right has been permitted.35
Vermont requires a separate assessment where water rights
are severed from the riparian land.35
Where water rights are appurtenant to lands within Wy-
oming, the rights must be taxed with the land.37 Where the
rights are not appurtenant to land and the water is used in the
state, the separate assessability of water rights is not clear;
but if the water is used outside the state, separate assessment
at the "place of origin" of the right is required.38

75.2 Separate assessment of dams, canals, flumes, pipes, etc.
Unless the statute requires that improvements be assessed
separately from the land,39 the improvements probably may be
included in a single assessment of the land on which located.
The difficulty with the single assessment, of course, is its failure
to apprise the taxpayer of the component values placed on
various physical properties.
SIn some states the statutes expressly provide that pipes and
mains located in roads, streets, and alleys shall be listed and
taxed where located,40 while several states include flumes, aque-
ducts, and reservoirs in the enumeration of properties to be
assessed in this manner.4" In those states which expressly desig-
nate the pipes and mains as personal property,42 it would seem
that separate assessments are required.

34 Utah Const., Art. XIII, 2.
3a Utah Metal & Tunnel Co. v. Groesbeck, 62 Utah 251, 219 Pac. 248
(1923). The separate assessment was justified on the ground that water
was being sold and that the valuation of land where water was developed
could not properly reflect the value of the water right.
36 Vermont Stat. Ann. 1959, Tit. 32, 3605.
37 Wyo. Stat. Ann. 1957, 39-280, 39-281.
38 In Ver Straten v. Board of County Comrs., 35 Wyo. 67, 246 Pac. 916
(1926), the court held that an entryman under the Carey Act, before a
patent is received, does not have an interest in land so that the water right
under a contract was not appurtenant to the land; the court hinted that the
water right may be separately assessed.
39 E.g., Cal. Rev. & Tax. Code, 607; N. Dak. Cent. Code, 57-02-27.
40 Ill. Rev. Stat., ch. 120, 544 (where located); Mich. Stat. Ann., 7.8
(where located); Minn. Stat. Ann., 273.35 (where located); Mont. Rev.
Codes 1947, 84-424, 84-425 (at principal place of business).
41 Kan. Stat. Ann. 1963, 79-422 (where located); Utah Code Ann. 1953,
59-4-2 (when separately taxable, taxed where located).


'h1 109


lic use to which the same are, or will be, devoted.
Upon receipt of a certified copy of such resolu-
tion, the proper officials of the county, and of the
state, are hereby authorized, empowered and
directed to make proper entries upon the rec-
ords to accomplish such cancellation and to
do all things necessary to carry out the provi-
sions of this section, and to make the same ef-
fective, this section being their authority so to
History.-5-1, 2, ch. 22845, 1945.
192.60 Cancellation of certain taxes on real
property acquired by counties.--Whenever any
county or county school board of this state has
heretofore acquired, or shall hereafter acquire,
title to any real property, the taxes of all po-
litical subdivisions, as defined in 1.01, upon
such property for the year in which title to
such property was acquired, or shall hereafter
be acquired, shall be that portion of the taxes
levied or accrued against such property for
such year which the portion of such year which
has expired at the date of such acquisition
bears to the entire year, and the remainder of
such taxes for such year shall stand canceled.
History.-l, ch. 26974, 1951; 1I, ch. 66-179.
192.61 Assessment of riparian rights.-Ri-
parian rights shall not be assessed or extended
upon the tax roll for purposes of taxation but
the value of such rights to the abutting land
may be included in determining the assessed
value of the land.
History.-13, ch. 28262, 1953; (1)-(4), tr. (271.09.
Cf.-S194.63 Cancellation of certificates on riparian rights sep-
arate from land.
5271.09 Riparian rights defined; certain submerged bottoms
subject to private ownership, etc.
192.62 Taxation of exempt and immune prop-
erty; exceptions.-
(1) Any real or personal property which for
any reason is exempt or immune from taxation
but is being used, occupied, owned, controlled
or possessed, directly or indirectly by a person,
firm, corporation, partnership or other organi-
zation in connection with a profit making ven-
ture, whether such use, occupation, ownership,
control or possession is by lease, loan, contract
of sale, option to purchase or in any wise made
available to or used by such person, firm, cor-
poration, partnership or organization, shall be
assessed and taxed to the same extent and in
the same manner as other real or personal prop-
(2) This section shall not apply to prop-
erty described in subsection (1) when:

/c3. /V


(a) The property is used exclusively for
religious, scientific, municipal, educational, lit.
erary or charitable purposes;
(b) The property is owned by the federal
government and used by a defense contractor
in the fulfillment of a federal government con.
(c) The property is owned or used by the
state, any county, municipality, or public entity
or authority created by statute and is leased or
otherwise made available to such person, firm,
corporation, partnership or organization by
such public body for a consideration in the per-
formance by the public body of a public func-
tion or public purpose authorized by law, or
which property prior to the effective date of
this act was leased for valuable consideration
for purposes not otherwise exempt hereunder;
(d) The property is used for maritime con-
struction and repair of vessels engaged in in-
terstate or foreign commerce;
(e) The property is developed for and de-
voted to the sole use of federal aviation agency
(f) The property is used by a corporation
performing services of a public nature for the
operation of its public utilities facilities there-
(g) The property is owned by any housing
authority heretofore or hereafter organized
under chapter 421, and used for purposes au-
thorized under said chapter;
(h) The property is owned by any quadri-
centennial commission created by or under the
laws of Florida and used by such commission
for authorized public purposes; or

(i) The property is located on Santa Rosa
island and is owned by Escambia county, Santa
Rosa county, or Okaloosa county, or is con-
trolled by any agency thereof created by stat-
ute, and is used for public purposes authorized
by law.
(3) The classification of such interest as
property for the purposes of taxation under this
section shall not be affected by any provision
of the contract or agreement under which the
same is used, occupied, owned, controlled or
(4) Such taxes shall not become a lien
against the property used, occupied, owned, con-
trolled or possessed for such purposes but shall
constitute a debt due and shall be recoverable
by legal action or by the issuance of tax execu-
tions which shall become liens upon any prop-
erty of the taxpayer who owes said tax in any
county where recorded in the lien record.
History.--1, ch. 61-266.

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Ch. 192



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