(dissenting).
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, three elements must always exist: (1) An intent to apply it to some existing or contemplated beneficial use; (2) an actual diversion from the natural channel by some mode sufficient for the purpose-, and (3) an application of the water within a reasonable time to some *451beneficial use. . . .” [Emphasis added]
This Hutchins concludes, expresses the consensus of the western judiciary, not only when the opinion was written but currently.3
I believe the diversion requirement is clear from the statutory and constitutional language of this state. The majority opinion concedes that up until the time of the enactment of I.C. § 67-4307 in 1971, “. . . Idaho’s statutory scheme regulating the appropriation of water has contemplated an actual physical diversion.” The opinion suggests that in 1971 when I. C. § 67-4307 was enacted, the Legislature made a turnabout, and stated a policy at odds with its previous general statutory scheme of water appropriation. I do not agree with this interpretation. I am not conviced that in enacting I.C. § 67-4307, the Legislature intended to abrogate a long standing requirement that a physical diversion be coupled with an intent to apply the water for a beneficial use before an appropriative right would be recognized.
In the same year I.C. § 67-4307 was enacted, I.C. § 42-103 was amended to read in pertinent part:
“The right to the use of the unappropriated waters . . . within this state shall hereafter be acquired only by appropriation under the application, permit and license procedures as provided for in this title, unless hereinafter in this title excepted.” [Emphasis added]
The application, permit and licensing procedures for the appropriation of water all encompass a physical diversion.4 There has not been brought to our attention any exception to the application, permit and licensing requirements of I.C. § 42-103. I. C. § 67-4307 requires that a permit and license be issued in connection with these waters.
Article 15, sec. 3 of the Idaho Constitution reads in pertinent part,
“The right to divert and appropriate the unappropriated waters of any natural stream to beneficial uses, shall never be denied, except that the state may regulate and limit the use thereof for power purposes.” [Emphasis added]
It is significant that the conjunctive was used when the Constitution was written, i. e., divert and appropriate rather than the disjunctive, i. e., divert or appropriate. In the absence of any contrary evidence, we should presume that the framers of the Idaho Constitution chose the conjunctive deliberately and that they intended it be accorded its ordinary meaning.
Finally, the constitutional underpinning of the diversion requirement has been recognized by this Court in past decisions. In Glenn Dale Ranches, Inc. v. Shaub,5 this Court in passing upon appellant’s charge that respondent failed to prove its prior appropriative right stated,
“Indeed, the record fails to show that respondent’s predecessor in interest actually diverted the water in question and put it to beneficial use. Absent such a showing, respondent can not claim rights by appropriation antedating its ownership of the property.”
The majority opinion is incorrect when it concludes that the actual holding in that case insofar as it relates to the necessity of an actual physical diversion was based on *452statutory requirements. A careful scrutiny of that case indicates that the Court was relying upon the Idaho Constitution, art. 15, sec. 3 to establish and substantiate the diversion requirement.6
. See S. Wiel, Water Rights in the Western States §§ 36T-367 (3rd ed. 1911) ; Hutchins, Background and Modem Developments in State Water-Rights Law, in 1 Waters and Water Rights § 20.3, § 22.2 (R. Clark ed. 1967).
. Hutchins, Water Rights Laws in the Nineteen Western States, Yol. 1, p. 366 (1971).
.Id. There is language in opinions of our sister states where the courts expressed the view that a diversion is necessary to support an appropriation. While this authority is not binding upon us, it is certainly persuasive as indicative of the thought in this area. See State of New Mexico ex rel. Reynolds v. Miranda, 83 N.M. 443, 493 P.2d 409 (1972); Gates v. Settlers’ Milling, Canal & Reservoir Co., 19 Okl. 83, 91 P. 856 (1907); Sherlock v. Greaves, 106 Mont. 206, 76 P.2d 87 (1938); Crawford v. Lehi Irrigation Company, 10 Utah 2d 165, 350 P.2d 147 (1960); McPhail v. Forney, 4 Wyo. 556, 35 P. 773 (1894); Hutchinson v. Stricklin, 146 Or. 285, 28 P.2d 225 (1933); Clough v. Wing, 2 Ariz. 371, 17 P. 453 (1888).
. See I.C. §§ 42-101, 42-201 et seq.
. 94 Idaho 585, 587, 494 P.2d 1029, 1031 (1972).
. Id. fn. 6. See also Sandpoint Water & Light Co. v. Panhandle Development Co., 11 Idaho 405, 413, 83 P. 347, 349 (1905); Neilson v. Parker, 19 Idaho 727, 730-731, 115 P. 488, 489 (1911); Hutchinson v. Watson Slough Ditch Co., 16 Idaho 484, 493, 101 P. 1059, 1063 (1909); Cantlin v. Carter, 88 Idaho 179, 186, 397 P.2d 761, 765 (1964); Jones v. McIntire, 60 Idaho 338, 352-353, 91 P.2d 373, 379 (1939); Hutchins, The Idaho Law of Water Rights, 5 Idaho L.Rev. 1, 20-21 (1968).