'jaa/Miiii an' ■UU3IJ»J 3V ^&Aavaan-i- ^WtUNIVERJ/A ineers in the field, however, lariiely believe that the law as it has been worked out )).v tlie slow and laborious process of court decision (spread throuiih many books where it is not easily found, and taking shape largely from the conser- vative attitude of the courts in their desire to protect vested rights) does not adequately meet the require- ments of the present energetic prosecution of irrigation works by nmny new methods. This attitude of the hydraulic engineers has largely led to the recent irrigation <(»de legislation set forth in Appendix B. As there stated, a draft of a State Irrigation Code was prepared by Mr. ^lorris Bien, head of the Legal Department of the United States Reclama- tion Service, at the direct solicitation of commissioners appointed by the Governors of Washington and Oregon. His draft was substantially a(h)pted in 11)05, in other States and Territories, as elsewhere set forth. The writer requested Mr. Bien to present to thi^ read- ers of this book a general view of the objects sought in the irrigation code legislation, and in re]dy received the following letter, which the writer considers it a privi- h'UC to be able to include. lERIGATION LEGISLATION. DEPARTMENT OF THE INTERIOR. UNITED STATES GEOLOGICAL St'RVEY. RECLAMATION SERVICK. Wasliin<>tcm, D. C, November 1, 1905. Mr, Samuel C. Wiel, Dear Sir: I am in reeeipt of yours of October 21, 1005, request- ing a statement of views concerning the recent irriga- tion legislation in the States and Territories of the West, ^ly understanding is that you desire an expres- sion concerning the relation of these enactments to the engineering side of irrigation. In regard to the general features of this subject, the most important matter of interest to the engineer is that the adjudications of the courts upon the subject of water rights should bear a closer relation to the physical conditions than was the case until within recent years, and even now there are frequent decisions which do not take fully into account the facts regarding water supply and the needs of the irrigators. The principal advance in recent years in irrigation legislation has been a tendency to provide the supervi- sion of persons technically qualilied on the engineering side, in the appropriation, adjudication and distribu- tion of water. The earliest practice in the arid region permitted appropriators to put of record such claims to the water supply as they deemed advisable. The natural tend- ency was to make the claim large enough to cover all possible future development of their plans. This led IK'HKiA'I'loX IJ:(;iSI.ATi<)X. vii in many instances to speculative claims and numerous cases are of record where each of a number of claims to the water of a stream filed in pursuance of the State statute involved a lar<>er (]uantity of water than Jiad ever llowed in it cn'en in limes of g^reatest flood. WIh'h questions concerning' such a stream came be- fore the courts for adjustment the record would show claims to the use of water far in excess of any possible sup])ly in connection with expert testimony (much of it was unreliable) as to the quantity of water available. In addition to this there would be much testimony on behalf of the i)ai-ties to the proceeding tending to show the needs of crops as far in excess of the requirements of reasonable use. As a result, the courts have decreed to the various claimants rights to the use of water which could by no possibility be obtained from the stream because the ^^•ater was not there. These decrees have therefore left matters in l)ut little better shape than they were before, and the parties have often been reipiired to agree among themselves as to the partition of the water sup- ply, following these decrees only in a general way, as an alternative to further expensive litigation. In most of the recent legislation provision is made for a State Engineer who shall carefully examine all api>lications for water rights and attempt to keep such applications within some reasonable relation to the amount of water available. He is required also from time to time to make hydrographic surveys, meas- uring the water supply in the streams and the amounts used for irrigation and other purposes. These investi- gations are used for the juirpose of adjudicating the claims to water already of record and with a resulting determination of the amount of unappropriated water available for further application. viii lEEIGATION LEGISLATION. In this way the States having legislation of this char- acter propose to adjust accurately all claims of record and to regulate the filing of future claims. The investigations of the State Engineer as to the water Avhich is used are ultimately to form the basis of an adjustment of the rights of all parties by the courts. In some States there is an intermediate step providing for an adjustment by a State tribunal which is final in case there is no appeal to the judicial branch. The water claimed under adjudication by the courts or under filings of record is distributed by State oflQcers usually appointed by the State Engineer. The distribu- tion is therefore, in a similar way, under the supervi- sion of persons technically qualified to measure the water supply who become thoroughly familiar with the rights of all parties in the districts under their charge and who are thus (puilified to distribute the water to the best advantage avoiding a condition which has often existed, of a waste in the use of water in one portion of a stream system and a corresponding shortage in an- other. In addition to this, the legislation often provides a minimum duty of water, namely, that the unit of water supply shall be utilized for the irrigation of not less than a given number of acres. This legislative declara- tion of the duty of water would naturally be a guide to the courts in their adjudications and prevent the decree of excessive quantities of water, of which so many in- stances are of record. The gratifying feature of nearly all recent legislation is the recognition of the logical underlying i)rinciples of the use of the waters in the Western States and Ter- ritories, a principle which is concisely stated in section 8 of the Act of Congress approved June 17, 1902 (32 Stat, 388), known as the Reclamation Act: "That the TRRTOATIOX IJ'lc; ISI.ATIOX. ix rijiiit to the use of water * * * sliall Itc a])i)Ui-t('n- aiil lo tlu' land irrijjjated and Itcncticial use sliall be the basis, the measure and the limit of the right.'' The idea that all rights to the use of water shall be founded upon benelieial use is of course as fully ap- plicjible to mining, power, manufacturing and all other beneficial purposes, as to irrigation. The application of this ])rin(iple to future legislation of the various States and Territories in which irrigation is practiced cannot fail to bring about a more satis- factory condition in this respect and eliminate from enter])rises depending upon the use of water the doubts as to the legal status of Avater rights and the great ex- pense due to litigation resulting from these uncertain- ties. The interest of the engineer in this legislation is of primary importance, as he finds it a great handicap in the designing of ecimomical and efficient hydraulic structures when the amount of water which may be available for use therein is undetermined. The ques- tion in fact involves engineering considerations fully as much as, if not more than, those of a legal nature, and the outlook for future legislation is the more satis- factory because legislators have begun to recognize the hydraulic engineer as a necessary factor in the appro- priation, adjudication and distribution of rights to the use of water. Xqij respectfully', MORRIS bip:n, srPKHVISIXO ENGIXKErt, I'. S. lUX I.AMATIOX SEHVUE. TABLE OF CONTENTS. Preface iii Purpose of IjOfjislation — Mr. Morris Bien v Table of Cases xxiii CHAPTER I. HISTORICAL EEVIP]W. A. ORIGIN OF THE DOCTRINE OF APPROPRIATJOX. § 1. California before the arrival of pioneers. § 2. Mexican law. § 3. Customs of miners. § 4. The customs and the court. § 5. Irwin v. Phillips. B. DEVELOPMENT OF THE DOCTRINE. § 6. Irwin v. Phillips followed. § 7. Was this new rule to be made to conform to the common law of riparian rights? § 8. Was this judicial legislation? § 9. How far applicable to other pursuits than mining? C. EARLY LEGISLATION. § 10. Federal statutes of 1866 and 1870. § 11. Comments on these Federal statutes. § 12. State legislation in California. D. THE CONFLICT OVER RIPARIAN RIGHTS. § 13. Private title to land and new industries. I 14. The law and irrigation. § 15. Riparian rights before Lux v. Haggin. 5 16. Lux V. Haggin. I 17. Result of Lux v. Haggin. § 18. Principle of Lux v. Haggin approved in nine States. I 19. Principle of Lux v. Haggin rejected in seven States. (xi) TABLE OF COXTENTS. E. LATEE AND RECENT LEGISLATION. 5 20. Irrigation codes. S 21. Irrigation districts. § 22. Statement of the doctrine of appropriation. CHAPTER II. NATURE OF THE lUrTHT OF APPROPRTATTOX A. RELATION TO THE GOVERNMENT. § 23. The United States or the State— California system. § 24. Appropriation as a grant under this system. § 25. The United States or the State — Colorado system. § 26. Comments on the Colorado view. § 27. Summary. B. RELATION TO OTHER APPROPRIATORS. § 28. Priority governs. § 29. Successive appropriations. § 30. Periodical appropriations. § 31. Temporary appropriations. i 32, No partiality. C. RELATION TO RIPARIAN PROPRIETORS. To subsequent settlers. To prior settlers. Prior settlers who hold the land in fee. Prior settlers before patent. Conclusion. D. CHARACTERISTICS. 38. The right is usufructuary. 39. No property in the "corpus" of the water. 40. No property in the channel. 41. The right is exclusive. 42. Independent of ownership or possession of land. s 33. § 34. 9 3.5. § 36. § 37. TABLE OF CONTENTS. 43. Distinguished from right to a ditch. 44. It is real estate. 45. It is conditional. 46. It is an incorporeal hereditament. 47. Definition. CHAPTER III. WHO CAX APPEOPEIATE. S 48. Persons in general. § 49. Tenants in common. § 50. Eiparian owners. § 51. Corporations, CHAPTER IV. WHEEE AX APPEOPEIATIOX CAX BE MADE. A. ON PUBLIC LAND. 52. The first appropriations were all on public land. 53. Eevised Statutes of the United States. 54. State lands. 55. Presumption that lands are public. B. ON PRIVATE LAND. 56. In general, not allowed. 57. Healy v. "Woodruff. 58. Cave v. Tyler. 59. Hostile appropriation. 60. With consent of the landowner. 61. By the landowner himself. 62. Review of decisions. C. RECAPITULATION. 63. Principles stated. TABLE OF CONTENTS. CHAPTER V. WHAT CAN BE APPROPEIATED. A. SUKFACE WATER. 64. Water in a surface watercourse. 65. What constitutes a watercourse. 66. Navigable streams. 67. Interstate streams. 68. Artificial watercourses. 69. Diffused surface water. 70. Lakes and ponds. 71. Swamp lands. B. UNDERGBOUND WATER. 72. In general. 73. Definite underground streams. 74. The sub-flow of a stream. 75. Sub-flow defined. 76. Sub-flow may be appropriated. 77. Percolating water. 78. Percolating water may be appropriated. 79. Underground reservoir. 80. Effect of the new rule. CHAPTER VI. HOW AX APPROPRIATION IS MADE— IN CALIFOR- NIA AND STATES THAT HAA^E NOT ADOPTED IRRIGATION CODES. ( 81. Introductory. S 82. Origin of this method. I 83. Ownership of land not needed. A. BY ACTUAL DIVERSION. S 84. Distiuguislicfl from the Civil Code method. § 85. The Civil Code does not apply. I 86. Examples. S 87. Mere settlement on land not enough. § 90. § 91. 5 92. § 93. ! 94. { 95. TABLE OF COXTKXTS. B. TO SECURE THE BENEFIT OF RELATION. 5 S8. Object of Civil Code provisions. J 89. Civil Code provisions chiefly declaratory only. C. NOTICE. Form of notice. Purpose of notice. The notice operates as a warning. Failure to post notice. Notice alone not enough. Notice in appropriating underground water. P. BENEFICIAL PURPOSE. 5 96. What constitutes a beneficial purpose, § 97. Motive. S 98. Evidence of intention. } 99. Intention alone not enough. E. DILIGENCE. § 100. Must be diligence in prosecuting construction work, § 101. What constitutes diligence. § 102. Failure to use diligence. F. COMPLETION OF CONSTRUCTION WORK. S 103. Completion of work. i 104. What amounts to completion. § 105. Mere diversion. 5 106. Changes in course of construction. G. RKLATIXG BACK. § 107. Origin of the doctrine. § 108. p:ffect of relation. )? 109. Actual ai)plication. § 110. Recapitulation. TABLE OF CONTENTS. CHAPTER VII. HOW AN APPEOPKIATION IS MADE— IX STATES ADOPTING IKRIGATIOX CODES. § 111. Introductory. § 112. Application for permit. § 113. Examination of application and issuance of permit. § 114. Prosecution of the work. § 115. Issuance of certificate of appropriation. § 116. Kelation. § 117. Measurement of water. CHAPTER YIII. LIMITATIONS ON EXERCISE OF THE EIGHT. § 118. Introductory. A. LIMITATIONS AEISING OUT OF NATUKE OF EIGHT. § 119. Nature of the right. § 120. Contracts in general concerning water rights. § 121. Conveyances. § 122. Appurtenance. § 123. Parol sale. § 124. Usefulness and continuance of use. B. LIMITATIONS ON MANNEE OF USE. § 125. In general. § 126. Change of means of use. § 127. Wastefulness. § 128. Use in artificial watercourse — Ditches, flumes, etc. § 129. The ditch, etc., is an easement. § 130. Ditch and water right distinguished. § 131. Water in artificial watercourse is personalty. § 132. The law of natural waters does not apply to artificial water- courses. § 133. Natural dry ravines as artificial watercourse. § 134. Changes in ditches, etc. § 135. Eepair of ditches. § 136. Damage from breaking ditches, etc. § 137. Contracts concerning ditches. TABLE OF ('OX TEXTS. C. LIMITATIONS ON QUANTITY OF WATEE. § 138. Introductory. § 139. No more than originall}^ claimed. § 140. No more than capacity of ditch. § 141. No more than actually used. § 142. Whole stream. § 143. Where no other claimants. § 144. Preferences and pro-rating. § 145. Appropriations for future needs. § 146. Same. § 147. Summary. D. LIMITATIONS ON CHANGE OF PLACE OR PUEPOSE. § 148. What constitutes a proper place or purpose. § 149. No injury to others. § 150. Change of place of diversion or use. § 151. Change of purpose. CHAPTER IX. PEOTECTIOX OF THE EIGHT. A. GENEEAL PRINCIPLES. § 152. Introduction. § 153. Materiality of injury is the test. § 154. Later land grants all subject to prior appropriations. B. INJURY TO QUANTITY. § 155. General rules. § 156. Surplus. § 157. Injury from diversion by percolation. § 158. Diversion by percolation under the recent decisions. § 159. The question of motive. § 160. Importance in mining regions. C. INJURY TO QUALITY. § 161. Materiality of injury is the test. § 162. Examples. § 163. Mining debris. § 164. Prioritv. TABLE OF CONTENTS. D. PKOCEDUEE. § 165. Who can sue. § 166. Where suit can be brought. § 167. Injunction. § 168. Actions at law. § 169. Actions to quiet title. § 170. Pleading. § 171. Use of physical force. § 172. Crimes. CHAPTER X. SUPEEVISION OF APPROPRIATOES— IN STATES ADOPTING lERIGATION CODES. § 173. Introductory. § 174. Supervision of State. §. 175. Intermediate subdivisions. § 176. Primary subdivisions. § 177. Police regulations. CHAPTER XI. ADJUSTMENT OF EXISTING PRIORITIES— IN STATES ADOPTING IRRIGATION CODES. i 178. Introductory. A. BY THE BOAKD OR STATE ENGINEEE. § 179. Preparatory steps. § 180. Procedure. § 181. Certificate. B. BY DECEEE OF COURT. 5 182. Preparatory steps. § 183. Procedure on suit. § 184. Decree and certificate. TAHLE OK ('(JXTKXTS. CHAPTEK XII. § 185. Tntrodnetory. LOSS OF EIGHT. A. ABANDONMENT. § 186. Abandonment is voluntary and a question of fact. § 187. Eecapture. § 188. Parol sale or faulty deed. § 189. Failure of tliligence in construction work. § 190. Non-user. §• 190a. Same. § 191. Discharged waste. B. FORFEITURE. § 192. Failure to comply with statute in making an appropriation. § 193. Smith v. Hawkins. § 193a. Forfeiture under irrigation codes. C. ADVERSE USE. § 194. In general. § 195. No need of statutory appropriation. § 196. Use of water for a beneficial purpose. § 197. Continuous for five years. § 198. Hostile invasion of right of true owner. § 199. Open and "not clam." § 200. Chance to prevent. § 201. Uninterrupted. § 202. Payment of taxes. § 203. Against the United States. § 204. Conclusion. D. ESTOPPEL. § 205. Estoppel. E. EMINENT DOMAIN. § 206. Eminent domain. TABLE OF CONTENTS. CHAPTER XIII. THE COMMOX LAW OF EIPAEIATs^ ETGHTS. § 207. Appropriation and the common law. § 208. Riparian rights under the California doctrine. A. NATURE OF RIPARIAN RIGHT. § 209. Part and parcel of riparian land — Not an easement. § 210. Usufructuary solely. § 211. May be sold or be the subject of contract. B. WHAT SUBJECT THERETO. § 212. In general. § 213. Underground streams. § 214. Percolating water under recent decisions. C. LIMITATIONS ON USE OF WATER. § 215. In general. § 216. Natural uses. § 217. Artificial uses. § 218. Apportioning. § 219. Cannot be used on non-riparian land. § 220. Return of surplus. § 221. Manner of use. D. PROTECTION OF THE RIGHT. § 222. In general. § 223. Diminution, acceleration, pollution. § 224. Form of remedy, § 225. Pleading. E. LOSS OF RIGHT. § 226. No abandonment. § 227. Adverse use. § 228. Eminent domain. § 229. By natural causes. P. DISTINCTION FROM APPROPRIATION. § 230. Distinctions recapitulated. § 231. Change of attitude toward appropriation in California. TABLE OF CONTENTS. APPENDIX A. Federal Statutes, p. 309. California Statutes, p. 316. APPENDIX B. STATE STATUTES. Scope ami Purpose of Statutes, p. 331. Arizona, p. 334. Colorado, p. 335. Idaho, p. 339. Kansas, p. 346. Montana, p. 347. Nebraska, p. 348. Nevada, p. 353. New Mexico, p. 361. North Dakota, p. 363. Oklahoma, p. 367. Oregon, p. 370. South Dakota, p. 373. Texas, p. 377. Utah, p. 378. Washington, p. 406. Wyoming, p. 407. Philippine Islands, 410. APPENDIX C. FORMS. California, \>. 413. Colorado, p. 415. Idaho, p. 425. Nebraska, p. 449. Nevada, p. 460. North Dakota, p. 468. Utah, p. 485. Wyoming, p. 500. Plat used in Nevada, p. 515. Plat used in Nebraska, p. 516. Township Plat, p. 516. Index, p. 517. TABLE OF CASES. Page Abila, Directors v. 45 Abbott V. Pond 189 Abbott, Taylor v. 76, 103, 106, 141, 151 Abel V. Love 92 Acme Oil Co., Dillon v. 239 Acton V. Blundell 225, 227, 231 Adams, Jones v. 57, 76, 298 Adams v. Modesto 123 Adams, North American Ex- ploration Co. V. 181, 268 Agasse, Oliver v. 192, 199 Ager, Joseph v. 192, 199 Agricultural Ditch Co., Farmers' Independent Ditch Co. V. 257 Ahern, People v. 122 Albuquerque etc. Co. v. Gui- terres 22, 26, 95, 240 Albuquerque etc. Co., Gu- tierrez V. ' 38 Alhambra etc. Co., Mayberry V. 87, 192, 193, 265 Alhambra etc. Water Co. v. Richardson 278, 281 Aliso etc. Co. v. Baker 286 Allaman, Clark v. 32, 37 Allen V. Flood 228 Allen V. San Jose etc. Co. 192, 199 Allen V. Stowell 245 Alessandro Irr. Dist., People V. 45 Allouez, Edwards v. 244 Alston V. Grant 239 Alta etc. Co. v. Hancock 37, 78, 278, 279, 280, 296, 297, 299, 303 Altoona etc. Co., Integral elc. Co. V. 192, 268, 276 Amador etc. Co.. Hobbs v. 236 Amador Canal etc. Co., Mit- chell V. 89, 157, 181 American etc. Co. v. Brad- ford 224, 278, 280, 282, 283 Annuity etc. Co. v. Lamar etc. Co. 54 Page Anaheim etc. Co. v. Semi- Tropic etc. Co. 92, L54, 196, 271, 301 Anaheim etc. Co., Eincon etc. Co. V. 150, 248 Anderson, Senior v. 70, 71, 76, 93, 100, 106, 140, 141, 155, 162, 165, 181, 191, 204, 205, 210, 224, 246, 267, 279 Argile, Promontory etc. Co. V. 277 Arkwright v. Gell 196, 271 Armstrong, New Mercer etc. Co. V. 210, 211, 263 Arnett v. Linhart 181 Arnold v. Passavont 210, 212 Arrowhead etc. Hotel Co., Conrad v. 238, 239 Ashley, Brown v. 242 Askew, McDonald v. 83, 180 Atchison v. Peterson 11, 15, 21, 220, 223, 234, 245 Austin V. Chandler 38, 334 Authors V. Bryant 246 Azusa Irr. Co., Vineland Irr. Dist. V. 125, 126, 128, 129, 135, 152, 217, 226, 413 Azuza etc. Co., Fuller v. 293 Bachman v. Meyer 122 Baker, Aliso etc. Co. v. 286 Baker, Brown v. Ill Baldwin, Los Angeles v. 83 Baldwin, Strong v. 205, 248 Baldwin, Weill v. 202 Balfour v. Fresno Irr. Co. 179 Ball v. Kehl 103, 195, 197, 224, 271, 280 Ballard v. Tomlinson 239 Barker v. Gould 125, 127 Barker, Higgins v. 70. 215, 224 Barklev v. Tieleke 53, 184, ISS T^arnard v. Shirley 239 Barneich v. Mercy 190, 271 Barnes v. Glide 123 (xxiii) TABLE OF CASES. Page Barnes v. Sabron 73, 76, 113, 205, 210, 241 Barnum v. Hostetter 247 Barrows v. Fox 70, 79, 190, 191, 199, 201, 205, 206, 224, 291, 333 Bartholomew, Kirk v. 208 Basev v. Gallagher 11, 15, 21, 26, 74, 155 Bathgate v. Irvine 37, 78, 79, 106, 280, 292, 299, 300, 302, 303 Baudrv, McCrary v. 286 Baugh, Wheatley v. 232 Baumann, Churchill v. 293 Baxter v. Gilbert 37,78,79,121 Baxter v. Vineland Irr. Dist. 45 Beam, Schwab v. 143, 335 Bean, Morris v. 118 Bean v. Stoneman 192, 199, 201, 205 Bear Lake etc. Co. v. Gar- land Bear Kiver Co. v. Boles 74, 247, 268 ' Bear Eiver Co., Campbell v. 202 Bear Eiver etc. Co., McDon- ald V. 11, 17, 70, 204, 215, 219, 224, 248 Bear River etc. Co. v. New York etc. Co. 7, 220, 234, 236, 305 Bear River etc. Co., Wixon v. 17, 34, 74, 236 Beaver etc. Co. v. St. Vrain etc. Co. 208, 269 Beck, Sturr v. 21, 37, 65, 78, 80, 106 Becker v. Marble Creek etc. Co. 204, 212 Bed Rock etc. Co., Bell v. 268 Beers v. Sharpe 280 Bell V. Bed Rock etc. Co. 268 Bell, Hicks v. 8 Benicia etc. Co., Clyne v. 181 Bennett Nevada etc. Co. v. 86, 181, 210 Benton, Crooker v. 181 Benton v. Johncox 37, 62 Bergin, Junkans v. 70, 217, 224, 235 Beyers v. Colonial etc. Co. 217 Bicknell, Maeris v. 70, 91, 151, 161, 216, 218 Bigolow V. Draper 37 Big Four etc. Co., Oviatt v. 157 Big Horn Basiu etc. Co., Howell V. 202 Page Big Rock etc. Co., Boehmer V. 299 Bird, Dick v. 153 Bird, Packer v. 116 Bixler's Appeal 122 Bixler v. Board of Supervis- ors 122 Black V. Elkhorn M. Co. 184, 189, 265 Black Diamond Coal Co., Robison v. 236 Blackman, Hall v. 210, 211, 284 Black, McKeaney v. 83 Blair, City of Telluride v. 73 Blake, Heynemann v. 94, 195 Blankenship v. Whaley 183 Bledsoe v. Decrow 162, 190, 205, 246 Bliss v. Kennedy 290 Bliss V. Kingdom 193 Blundell, Acton v. 225, 227, 231 Board of Supervisors, Bixler V. 122 Board of Supervisors, Cosner V. 122 Board of Supervisors, Ferran V. 122 Board of Supervisors, Hagar V. 44, 122 Board of Supervisors, Ralston V. 122 Board of Supervisors v. Thompson 46 Board of Supervisors, Will- iams V. 122 Boehmer v. Big Rock etc. Co. 299 Boggs V. Merced Mining Co. 17, 196 Boise City Co., Hurd v. 181 Boise City etc. v. Stewart 61, 19o Boles, Bear River Co. v. 74, 247, 268 Bolter v. Garrett 284 Booth V. Chapman 83, 180 Booth, Modoc etc. Co. v. 37, 78, 79, 242, 291, 302 Roarda, People v. 250 Boskowitz v. Thompson 45 Boston Dock Co., Gould v. 290 Powkcr, Dalton v. 293 Boyle, Foreman v. 247 Bovnton v. Longley 121 Bradford, American Co. v. 224, 278, 280, 282, 283 TA15LE OF CASES. Page lh-;i.llcv, Fain rook Irr. Dint. V. ' 46, 286 Hriullcy v. llarknosa 92 Brandon, Kialto Irr. Dist. v. 45 Hrpp V. Wlu'clor 282 Kricknoll, Maeris v. 151, 154 Hroder v. Natoma Water Co. 21, 25, 76, 97 Brown v. Ashley 242 Brown v. Baker 111 Brown v. Illius 239 Brown, McGuire v. 37, 76, 78, 80, 83, 103, 106, 160, 188, 195, 217, 263 Brown v. Mullin 197, 224 Brown v. People's Ditch Co. 200 Brown v. Smith 207, 224 Brown, Strait v. 124, 130, 226 Brown Valley Irr. Dist., Peo- ple V. 45 Bruee v. Delaware etc. Canal Co. 242 Bryant, Authors v. 246 Buckers etc. Co., Platte etc. Co. V. 127 Bumpus, Stone v. 155, 189, 196, 224, 236, 271 Blinker Hill etc. Co., Last Chance etc. Co. v. 197, 218, 272 Blinkers etc. Co. v. Farmers' etc. Co. 129 Biirhank v. West Walker River Ditch Co. 203 Burdge v. Smith 98 Burdge v. Underwood 18 Burger, Reclamation Dist. v. 123 Burnett v. Whitesides 254 Burris v. People 's Ditch Co. 192 Burrows, Burrows v. 76, 141, 143, 165 Hurson, Southside etc. Co. v. 73, 211, 217 Butler, County of Sierra v. 236 Butte etc. Co., Miles v. 86, 166 Butte etc. Co. v. Morgan 217, 249 Butte etc. Co., Talbot v. 280 Butte etc. Co. v. Vaughn 84, 220, 234, 264, 265, 272 Buzzard, Haves v. 86 Caldwell, Dick v. 153 Caldwell. Whollcy v. 85, 304 Califoruia Pastoral Co. v. Whitson 123 California etc. Co. v. Enter- prise etc. Co. 302 Page (alkiiis, Cordoz v. 151, 152 (^ampbell v. Bear River Co. 202 ('ampbell, Kaler v. 93 Campbell v. West 192 Canal Co., Mitchell v. 141 Cannovan, Keane v. 276 Cardelli v. Comstock etc. Co. 196, 198 Cardwell y. Sacramento 116 Carpenter, Farm Inv. Co. v. 62, 64, 252, 256 Carpenter, Ophir etc. Co. v. 157, 1.58, 205 Carroll, Leggat v. 143, 144 Carrota, Green v. 195, 196 Carson v. Centner 37, 54 Carter, McShane v. 181, 182 Cave V. Crafts 154, 182, 204, 246, 282, 283 Cave V. Tvler 93, 96, 97, 98, 100," 107, 109, 110, 280, 303 <'entral etc. Co., Platte etc. Co. V. 269 Central Irr. Dist. v. De Lappe 44 Central Irr. Dist., In re 45 Central Pac. Ry., Consoli- dated etc. Co. V. 287 Chandler, Austin v. 38, 334 Chapman, Booth v. 83, 180 Chapman, Tuolumne etc. Co. V. 242, 245 Charnock v. Higuerra 190, 217, 246, 300 Chasemore v. Richards 225, 228 290 (.;hauvet v. Hill 282, 296, 300 Chew, Esmond v. 70, 236 Chew, Fort Lyon Co. v. 180 Chiatovich v. Davis 185 Chidester v. Consolidated Ditch Co. 202 Churchill v. Baumann 293 Church, Womersley v. 239 City of Oakland, People ex rel. Cuff v. 123 City of Santa Cruz v. En- right 107 City of Telluride v. Blair 73 Clare v. Sacramento Electric etc. Co. 123 Clark V. Allaman 32, 37 Clark V. Lawrence 239 Clark V. Willett 191,241,242 Clear etc. Works, Moore v. 241, 281 Clements, Watkins etc. Co. v. 37 Cleveland, Wilson v. 268 TABLE OF CASES. T>Qcr0 Cloke, Yuba Co. v. 155, 236 Clough, Cox V. 278, 282 Clough V. Wing 38, 58, 334 Clvne V. Benicia etc. Co. 181 Cochell, Todd v. 202 Coffey, Meng v. 30 Coffin V. Left Hand Ditch Co. 38, 57 Coghill, People v. 122 Coghill, Reclamation Dist. No. 124 V. 122 Cohen v. La Canada Water Co. 113, 130, 226, 233, 295 Coleman v. Le Franc 190 Cole V. Richards Irr. Co. 38, 121 Colimas, Pico v. 201 Colonial etc. Co., Beyers v. 217 Colorado, Kansas v. 21, 119, 129, 241 Colorado Springs, Strickler V. 217 Compton, Hicks v. 242 Comstock T. Co. v. Cardelli V. 196, 198 Conant v. Deep Creek etc. Co. 119 Conger v. Weaver 13, 34, 52, 70, 75, 89, 139, 145, 149, 151, 162 Conger, Weaver v. 74 Conkling v. Pacific etc. Co. 80, 241, 281 Conners, Ogburn v. 120 Conrad v. Arrowhead etc. Hotel Co. 238, 239 Conradt v. Hill 181, 282 Consolidated etc. Co. v. Cen- tral Pac. Ry. 287 Consolidated Ditch Co., Chi- dester v. 202 Cook, Hargrave v. 37, 78, 196, 215, 217, 219, 271, 303 Copper etc. Co. v. Wabash etc. Co. 230 Corbley, Norman v. 280 Corbitt, Smith v. 181, 182, 215, 217, 296, 298 Cordoza v. Calkins 151, 152 Correa v. Frietas 103, 155, 196, 271 Cosner v. Board of Super- visors 122 County of Sierra v. Butler 236 County of Yuba v. Cloke 236 County of Yuba v. Kate Hayes etc. Co. 236 Cowels v. Kidder 290 Cowper, Cucker v. 289 Page Cox V. Clough 278, 282 Crafton Water Co., Craig v. 116, 246 Crafts, Cave v. 154, 182, 204, 246, 282, 283 Craig V. Crafton Water Co. 116, 246 Crall V. Poso Irr. Dist. 44 Crandall v. Woods 11, 33, 35, 37, 78, 80, 81, 143 Crane, Hughson v. 45 Crane, Lakeside Ditch Co. v. 196, 246, 271 Crane v. Winsor 153 Crary, Yankee Jim etc. Co. V. 88, 180, 278 Crawford v. Hathaway 13, 35, 37, 42, 348 Creary, Dougherty v. 196, 270, 271 Creighton v. Evans 241, 281 Creighton v. Kaweah Co. 196 Crescent Canal Co. v. Mont- gomery 94, 95, 216 Crippen v. White 335 Crooker v. Benton 181 Cross V. Kitts 124, 135, 229 Crow, Waring v. 275, 276 Cruse V. McCauley 52, 62, 80 Cucker v. Cowper 289 Cullen v. Glendora Water Co. 45 Cummings, McDaniel v. 120 Cummings, Payne v. 181, 182 (Ainningham, O'Keiffe v. 238 Curtis, De Necochea v. 76, 91, 140, 141, 142, 145, 146, 148, 152, 157, 159 Cvclone Ditch Co. v. Lone Tree Ditch Co. 37 Dalton V. Bowker 293 Dangberg, Union etc. Co. v. 46, 70, 74, 80, 185, 204, 205, 210, 211, 246, 280 Davis, Chiatovich v. 185 Davis V. Gale 91, 215, 217, 219, 220, 263, 264, 270, 282 Day, Jacob v. 76, 192, 193, 199, 238 De Barker v. Southern Cal. Ry. Co. 224 Decker, Willey v. 29, 32, 37, 38, 55, 60, 78, 86, 118, 119, 194, 240 Decrow, Bledsoe v. 162 190, 205, 246 Deep Creek etc. Co., Conant v. 119 TABLE OF CASES. Page Dc Frietas, Siiisun v. 95, 160, 247 De Lappe, Central Irr. Dist. v. 44 Delaware etc. Canal Co., Bruce v. 242 Delinue, Konnow v. 247, 360 De Necochea v. Curtis 76, 91, 140, 141, 142, 145, 146, 148, 152, 157, 159, 164, 165, 273 Denifif, Smith v. 37, 53, 85, 89, 98, 110 Despain, Tynon v. 76 Dick V. Bird 153 Dick V. Caldwell 153 Diersen, Gwynn v. 122 Dillon V. Acme Oil Co. 239 Directors v. Abila 45 Ditch Co. V. Leigh 81 Dixon, Gray v. 18 Dixon, Ortman v. 17, 52, 70, 75, 156, 179, 180, 204, 205, 215, 219, 224 Dixon V. Schermeir 181, 192, 193 Dodge V. Marden 275 Doe, Smith v. 17, 18 Dorr V. Hammond 263, 268 Dorris v. Sullivan 87, 180 Dougherty v. Cleary 196,270, 271 Dougherty v. Haggin 147, 205 Dovle V. San Diego Co. 84 Drake v. Earhart 28, 38, 39, 60 Driscoll, Logan v. 11, 70, 235, 236 Dufour, Southern Pac. Ry. v. 130 Dumon v. Kellogg 290 Dunbar Fresno Canal etc. Co. V. 179 Dunsmuir v. Port Angeles etc. Co. 195 Dunster, Lord v. 122 Durfee v. Garvey 201 Earhart, Drake v. 28, 38, 89, 60 East Riverside etc, Co., Fudk'kar v. 183, 195 Eaton, Gould v. 125, 127, 135, 299, 300, 302 Eaton, Hoge v. 117, 118, 119 Eddv V. Simpson 6, 83, 154, 161, 270 Edes, Wood v. 290 Edgar v. Stevenson 70, 79, 93, 105, 224, 291 Edwards v. Allouez Co. 244 Edwards, North Fork etc. Co. v. 192, 199 Page illdorado Water Co., Osgood v. 2.5, 52, 97, 121 Eliot v. Whitmore 210 Elkhorn M. Co., Black v. 184, 265 Elk River etc. Co., People v. 238 i:iy V. Ferguson 113, 130 Emerson, Walker v. 103, 241, 281 Knglchardt, Mesnager v. 192 Ennor v. Raine 249 Knright, City of Santa Cruz v. 98, 107, 286 Enterprise etc. Co., Califor- nia etc. Co. V. 302 Enterprise etc. Co., Miller v. 116 Escondido H. S. Dist. v. Escondido Sera. 45 Escondido Irr. Dist., Mer- chants' Bk. V. 44, 45, 356 Escondido Sem., ICscondido H. S. Dist. V. 45 Esmond v. Chew 70, 236 Estrada, San Luis etc. Co. V. 13, 205, 206, 217, 248 Ktiwanda etc. Co., Wood v. 53, 98, 160, 263 Eureka etc. Co., Weaver v. 121, 146, 155, 166 Evans, Creighton v. 241, 281 Evans, McGillivary v. 92, 247 Evans, Reclamation Dist. v. 122 Everett v. Hydraulic Co. 202 Ewing, Mott V. 241, 281 Fairplav etc. Co. v. Weston 196 Falk, Quirk v. 181 Fallbrook Irr. Dist. v. Brad- ley 45, 46, 286 Fall River etc. Co.. Sherman v. 239 Farmers' etc. Co., Bunkers etc. Co. v. 12'9 Farm Inv. Co. v. Carpenter 62, 64, 252, 256 Farmers' etc. Co. v. White 26, 54, 206, 257 Farmers' Independent Ditch Co. V. Agricultural Ditch Co. 257 Farmers' Irr. Dist. v. Frank 30, 86, 206, 275 Farmers' etc. Irr. Co. v. Gothenburg Irr. Co. 219 Faulkner v. Rondoni 76, 79, 224, 278, 291 Feck, Swamp Dist. v. 122 TABLE OF CASES. Page Feige, Fisher v. 155, 228, 301 Feliz V. Los Angeles 4 Felt, Standford v. 79, 122, 241, 281, 296, 297, 301 Ferguson, Ely v. 113, 130 Ferran v. Board of Super- visors 122 Ferrea v. Knipe 33, 34, 190 Ferrea, Matthews v. 140, 278, 282 Fifield V. Spring Valley etc. Works 280, 304 Fifield, Spring Valley etc. Works V. 250 Fine, Hayes v. 88, 180 Fisher v. Feige 155, 228, 301 Fitzell V. Leaky 181 Fitzgerald v. Urton 17, 18 Fletcher, Phoenix Water Co. V. 12, 70, 220, 223, 224, 234, 235 Fletcher v. Kylands 202 Fliekinger v. Shaw 183 Flood, Allen v. 228 Fond, Hobart v. 19, 25 Foreman v. Boyle 247 Fogarty v. Fogarty 281 Fort Lyon Co. v. Chew 180 Fowler Canal Co., Heilbron V. 116, 240, 241, 242, 281 Fox, Barrows v. 70, 79, 190, 191, 199, 201, 205, 206, 224, 291, 333 Fraler v. Sears etc. Co. 201 Frank, Farmers' Irr. Dist. v. 30, 86, 206, 275 Frederick v. Dickey 282 Freed, Thorp v. 29, 154 Fremont, McCarty v. 249 Fresno Canal Co. v. Dunbar 179 Fresno Canal Co. v. Park 179 Fresno Canal Co. v. Kowell 179 Fresno Irr. Co., Balfour v. 179 Frey, Lowden v. 219, 246 Frey, Utt v. 143, 160, 263, 268 Frietas, Correa v. 103_, 155, 196, 271 Frink, Sieber v. 263, 268, 269 Frost, Glaze v. 210 Fudickar v. Irrigation Dist. 88, 183, 195 Fuller V. Azusa etc. Co. 293 Gage, Riverside etc. Co. v. 83, 195, 248, 302 Gale, Davis v. 91, 215. 217, 219, 220, 263, 264, 270, 282 Page Gallagher, Baser v. 11, 15, 21, 26, 74, 155 Gallagher v. Montecito etc. Co. 219, 278, 303 Garland, Bear Lake etc. Co. v. 22 Garrett, Bolter v. 284 Garrett, Welch v. 268 Garringer, Woolman v. 150, 153, 164 Garvey, Durfee v. 201 Gassert v. Noyes 218, 272 Gaston etc. Min, Co., Mc- Carthv v. 236, 245 Gearhart, Kimball v. 70, 148, 151, 157, 180 Gehring, Montana etc. Co. v. 234 Cell, Arkwright v. 196, 271 Gelwicks v. Todd 181 Centner, Carson v. 37, 54 Getchell, Nicholson v. 245 Gibbs V. Williams 115 Gibson v. Piachta 232 Gilbert, Baxter v. 37, 78, 79, 121 Gillan v. Hutchison 18, 19 Gilman v. Tilton 290 Glasell v. Verdugo 299 Glaze V. Frost 210 Gleason v. Hill 180, 204 Glendora Water Co., Cullen V. 45 Glide, Barnes v. 128 Glide V. Superior Court 123 Goldman, Reclamation Dist. V. 122 Gold Run etc. Co., People v. 236, 238 Goodrich, Swift v. 88, 192 Goon v. Proctor 263 Gothenburg Irr. Co., Farm- ers' etc. Irr. Co. v. 219 Gould, Barker v. 125, 127 Gould V. Boston Dock Co. 290 rxould V. Eaton 125, 127, 135, 299, 300, 302 Gould V. Maricopa etc. Co. 86, 94 Gould, Santa Barbara v. 95, 129, 267, 295 Gould v. Stafford 79, 293, 296, 297, 299, 302 Grant, Alston v. 23'9 Gray v. Dixon 18 Green v. Carotta 195, 196 Grconcastie v. Hazelett 239 Greenlaw, National Bank v. 123 Green, Smith v. 248, 278 Green v. Swift 116 TABLE OF CASES. Grppr V. Heiser Gregor^ Parker v. Hregorv v. Harris (ifogory V. Nelson Pa''-Le-i, Hale v. 124, 294 McTje^in v. Hapgood 193 "NTcNulty, Eichardson v. 268 McShane v. Carter 181, 182 Mechanics' Foundry v. Ry- all ■ 249 Mehrtens, Lindsay etc. Co. V. ■ 45, 286 Meiners, Rice v. 37, 78 Meiners, Ventura etc. Co. v. 299 Meng v. Coffey 30 Merced Min. Co., Bog^s v. 17, 196 Merchants' Bank v. Escon- dido Irr. Dist. 44, 45, 326 Mercy, Barneich v. 190, 271 Merkel, Huber v. 324 Merrill v. Southside etc. Co. 286 Mesmer, Rose v. 180, 246, 280, 293, 295 Mesnager y. Englehardt 192 Metropolitan etc. Co. v. To- peka etc. Co. 204 Meyer, Bachman v. 122 Meyer, Steinberg v. 246 Miller v. Enterprise etc. Co. 116 Miller v. Highland Ditch Co. 236, 247 Miller, Levaroni v. 17, 236 Miller y. Perris Irr. Dist. 45 Miller etc. v. Rickey 119, 190. 248 Miller y. Thompson 247 Miles v. Butte etc. Co. 86, 166 Mills, Patterson v. 70, 202, 203, 242. 248 Miners' Ditch Co., Tenney v. Mirfield, Turner v. " 239 Missouri v. Illinois etc. Dist. 119 Missouri v. Nebraska 304 Mitchell v. Amador Canal etc. Co. 89, 141, 157, 181 Mitchell v. Hecker 122 Modesto, Adams v. 123 Modesto Irr. Dist., Herring v. 45 Modesto Irr. Dist., Tregea v. 46 Modoc etc. Co. y. Booth 37, 78. 79, 242, 291, 302 Mohl V. Lamar Canal Co. 54 Montana etc. Co. v. Gehring 234 Montecito etc, Co., Gallagher V. 219, 278, 303 TABLE OF CASES. Page Montecito etc. Co. v. Santa Barbara 94, 116, 125, 127, 131, 132, 226, 242, 278, 281, 282, 283, 295 Montgomery, Crescent Canal Co. V. 94, 95, 216 Moon V. Kollins 268, 276 Mooney, Unger v. 283 Moore v. Clear Lake etc. Co. 241, 281 Monroe v. Ivie 153, 206 Morgan, Butte etc. Co. v. 249 Morgan, Shenandoah etc. Co. V. 80, 219, 248 Morris v. Bean 118 Moses, Hungarian etc. Co. v. 181 Moss V. Ross 211 Mott V. Ewing 241, 281 Moyer v. Preston 38, 56 Mt. Carmel Fruit Co. v. Webster 89, 179, 192 Mullin, Brown v. 197, 224 Munroe v. Tvie 153, 206 Murray v. Tingley 142, 148, 152 Museupiabe etc. Co., Wig- gins V. 85, 296, 298 National Bank v. Greenlaw 123 Natoma Water Co., Broder V. 21, 25, 76, 97 Natoma etc. Water Co. v. Hancock 18, 70, 75, 89, 98, 154. 224, 333 Natoma etc. Co.. Kelly v. 34, 140, 156, 160, 224 Natoma etc. Co. v. McCov 224, 235 Nebraska, Missouri v. 304 Nelson, Gregory v. 192. 200. 201, 243 Nephi Irr. Co. v. Vickers 191 Nevada etc. Co. v. Bennett 86. 181, 210 Nevada etc. Co. v. Kidd 73, 83, 87. 145, 148, 149. 151, 157, 159, 163, 164. 165. 166, 193, 194, 195, 219, 224, 247. 266, 268 Nevada etc. Co. v. Powell 70. 85, 215 Newington, Hillinan v. 224, 247 Newman. Hill v. 83, 87, 88, 91 Newman v. Superior Court 122 New Mercer etc. Co. v. Arm- strong 210, 211, 263 Page New York etc. Co., Bear Eiver etc. Co. v. 7, 220, 234, 236, 305 iVicols v. Mcintosh 194 Nicolson v. Getchell 245 Noble, Quinlan v 192 Norman v. Corbley 280 Norris v. Hoyt 92 North American Exploration Co. V. Adams 181, 268 North Bloomfield Co., United States V. 236 North Bloomfield Co., Wood- ruff V. 236, 238, 244 Northern Springs Min. Co., Sullivan v. 225 North etc. Co. v. Orient etc. Co. 94 North Fork etc. Co. v. Ed- wards 192, 199 Noyes, Gassert v. 218, 272 Offield V. Ish 110 Ogburn v. Connors 120 O'Hara, Smith v. 72, 87, 180, 184, 185, 224 O'Keiffe v. Cunningham 239' Oliver v. Agasse 192, 199 O'Neto V. Restano 87, 180, 280. 282 Ophir etc. Co. v. Carpenter 157, 158, 205 Oppenlander v. Left Hand Ditch Co. 265, 335 Oregon etc. Co., Weiss v. 244 Orient etc. Co., North etc. Co. V. 94 Ortman v. Dixon 17, 52, 70, 75, 136, 156, 179, 180, 204, 205, 215, 219, 224 Osgood V. Eldorado etc. Co. 25, 52, 80, 97, 121, 149 Oviatt V. Big Four etc. Co. 157 Owens, Tregea v. 45 Pacific etc. Club v. Sausalito etc. Co. 87 Pacific etc. Co.. Conkling v. 80. 241, 281 Packer v. Bird 116 Page V. Rocky Ford etc. Co. 85, 265, 280, 304 Painter v. Pasadena etc. Co. 293 Palmdale Irr. Dist. v. Rathbe 44 TABLE OF CASES. Page Parke v. Kilham 142, 162, 196, 245, 271, 284 Parker v. Gregg 202, 224 Parker v. Hotchkiss 290 Park, Fresno Canal etc. Co. V. 179 Parks etc. Co. v. Hoyt 83, 195, 198, 245, 248 Parsons, Snow v. 290 Partridge v. McKinney 88, 180, 269 Parvin, People v. 122 Parvin, Eeelamation Dist. V. 122 Pasadena etc. Co., Painter V. 293 Passavant, Arnold v. 210, 212 Patterson v. Mills 248 Payne v. Cummings 181, 182 Pebdola v. Eamm 181 Pennsylvania Coal Co. v. Sanderson 235 People V. Ahern 122 People V. Borda 250 People V. Brown "Valley Irr. Dist. 45 People's Ditch Co., Brown V. 200 People's Ditch Co., Burris V. 192, 199 People V. City of Oakland 123 People V. Coghill 122 People V. Elk Eiver etc. Co. 238 People V. Gold Run etc. Co. 236, 238 People V. Gunn 122 People V. Hagar 122 People V. Haggin 122 People V. Houston 122 People V. Hulbert 122 People V. Jeffereds 45 People V. La Rue 122 People V. Levee Dist. 123 People V. Linda Vista Irr. Dist. 45 People V. Perris Irr. Dist. 45 People V. Reclamation Dist. 122, 123 People V, Selma Irr. Dist. 45 People V. Truckee Lumber Co. 250, 293 People V. Turnbull 45 Peralta, Santa Paula etc. Co. V. 70, 73, 88, 92, 122, 205, 215, 217, 224, 246 Perdew, Lytle Creek etc. Co. Page Peregoy v. Selick 73, 246 Perrin, Howard v. 124 Perrin, Lyles v. 88, 180 Ferry Irr. Dist., Miller v. 45 Perris Irr. Dist., People v. 45 Perris Irr. Dist., Thompson V. 45- Paterson, Atchison v. 11, 15, 21, 220, 223, 234, 245 Peterson v. Santa Rosa 301 Phillips, Lower Kings Recla- mation Dist. V. 123 Phoenix etc. Co. v. Fletcher 12, 70, 220, 223, 224, 234, 235 Pico V. Colimas 201 Pitt, Rodgers v. 46, 210, 211, 213, 240, 246 Platte etc. Co. v. Buckers etc. Co. 127 Platte etc. Co. v. Central etc. Co. 269 Piatt V. Johnson 290 Pock, Sanguinetti v. 113, 120 Pomerov, Los Angeles v. 4, 80, 124, 125, 127, 129, 132, 134, 192. 193, 199, 226, 278, 286 Pond, Abbott v. 189 Pond M. Co., Real Del Monte M. Co. v.. 242 Pope V. Kinman 80 Port Angeles etc. Co., Duns- muir V. 195 Porter, McCall v. 160 Poschane etc. Co. v. Stan- dart 205 Poso Irr. Dist., Crall v. 44 Powell, Nevada etc. Co. v. 70. 85, 215 Preston, Moyer v. 38, 56 Proctor, Goone v. 263 Proctor V. Jennings 72 Promontory etc. Co. v. Ar- gile 277 Puchta, Gibson v. 232 Pugh V. Wheeler 290 Quinlan v. Noble Quirk V. Falk 192 181 Racouillat v. Sansevain 92 Raine, Ennor v. 249 Ralston v. Board of Super- visors 122 Ramelli v. Irish 76, 217, 219 Ramm, Pendola v. 181 TABLE OF CASES. yaacv Page Rathbe, Palmdale Irr. Dist. V. 44 Razzo V. Varni 113 Real Del Monte M. Co. v. Pond M. Co. 242 Reclamation Dist. v. Burger 123 Reclamation Dist. No. 125 v. Coghill 122 Reclamation Dist. v. Evans 122 Reclamation Dist. v. Gold- man 122 Reclamation Dist. v. Grant 122 Reclamation Dist. v. Hagar 122, 123 Reclamation Dist., Hensley V. 123 Reclamation Dist. v. Kenedy 122 Reclamation Dist., Lamb v. 122 Reclamation Dist. v. Parvin 122 Reclamation Dist., People v. 122, 123 Reclamation Dist. v. Runyon 123 Reclamation Dist., San Fran- cisco Savings Union v. 123 Reclamation Dist. v. Turner 122 Reclamation Dist. v. Van Lo- ben Sels 123 Reclamation Dist. v. West 123 Reed v. Spicer 192 Reinbach, Wahle v. 239 Reno etc. Co. v. Stevenson 29, 38, 57, 359 Restano, Oneto v. 87, 180, 280, 282 Reynolds v. Hosmer 181, 194, 204 Rialto Irr. Dist. v. Brandon 45 Rialto Irr. Dist., Seehrist v. 45 Rice V. Meiners 37, 78 Richards, Chasemore v. 225, 228, 290 Richards Irr. Co., Cole v. 38, 121 Richardson, Alhambra Water Co. v. 278, 281 Richardson v. Kier 198, 201, 202 Richardson v. McNulty 268 Richland Township, Upiohn V. ' 239 Rickev, Miller etc. Co. v. 190, 248 Rincon etc. Co. v. Anaheim etc. Co. 150, 248 Rio Grande etc. Co., Tellu- ride etc. Co. v. 22, 241 Rio Grande etc. Co., United States v. 21, 65, 67, 68, 116 Page Riverside etc. Co. v. Gage 83, 195, 248, 302 Riverside etc. Co., Rogers v. 194, 203 Riverside etc. Co. v. Sargent 161, 190, 205 Riverside etc. Co., Stockman V. 196, 271 Rizor, Hindman v. 187, 211 Rizor, Low v. 211 Robinson v. Imperial etc. Co. 143 Rocky etc. Co., Paige v. 85, 265, 280, 304 Roeder v. Stein 181, 206 Rogers, Hesperia etc. Co. v. 279, 282 Rodgers v. Pitt 46, 210, 211, 213, 240, 246 Rogers v. Riverside etc. Co. 194, 203 Rogers v. Scoggs 17 Rollins, Moons v. 268, 276 Rondini, Faulkner v. 76, 79, 224, 278 Ronnow v. Delmue 247, 360 Rosa, So. Yuba Water Co. v. 76 Rose, Hammond v. 38 Rose v. Mesmer 180, 246, 280, 293, 295 Ross, Moss V. 211 Round Valley etc. Co., Stan- dart etc. Co. V. 181 Rowell, Fresno Canal etc. Co. V. 179 Runyon, Reclamation Dist. 551 V. 123 Rupley V. Welch, 18, 19, 154 Ryall, Mechanics' Foundry V. 249 Rylands, Fletcher v. 202 Sabron, Barnes v. 73, 76, 113, 205, 210, 241 Sacramento, Cardwell v. 116 Sacramento Electric Co.j Clare v. 123 Saldunbehere, Watterson v. 105, 141, 247 Salina etc. Co. v. Salina etc. Co. 185 Salt Lake City v. Salt Lake etc. Co. ' 12, 28, 149 Salt River Co., Slosser v. 86 San Diego Co., Doyle v. 84 San Dimes etc. Co. v. San Jose etc. Co. 99 TABLE OF CASES. Page Sanderson v. Pennsylvania Coal Co. 235 Sander v. Wilson 37 San Francisco Sav. Union v. Reclamation Dist. 123 Sanguinetti v. Pock 113, 120 San Jacinto Irr. Dist., Marra V, 46 San Jose etc. Co., Allen v. 192, 199 San Jose etc. Co., San Di- mes etc. Co. V. 99 San Jose Land Co. v. San Jose Ranch Co. 106 San Jose W. Co. v. San Jose Land Co. 99 pan Luis etc. Co. v. Estra- da 13, 205, 206, 217. 248 San Luis etc. Co., Zimmler V. 87, 193, 203 San Miguel etc. Co., Suffolk etc. Co. V. 238 Sansevain, Racouillat v. 92 Santa Barbara v. Gould 95, 129, 267, 295 Santa Barbara, Montecito etc. Co. V. 94, 116, 125, 127, 131, 132, 226, 242, 278, 281, 282, 283, 295 Santa Cruz v. Enright 98, 286 Santa Paula etc. Works v. Peralta 70, 73, 85, 88, 92, 205, 215, 217, 224, 246 Santa Rosa, Peterson v. 301 Sargent, Riverside etc. Co. v. 161, 190, 205 Sausalito etc. Co., Pacific etc. Club V. 87 Sayre v. Johnson 92, 208 Schermeier, Dixon v. 181, 192, 193 Schulz V. Sweeney 270 Schultz V. Winter 247 Schwab V. Beam 143, 335 Scoggs, Rogers v. 17 Sears etc. Co., Fraler v. 201 Sechrist V. Rialto Irr. Dist. 45 Selma Irr. Dist., People v. 45 Sellick, Peregoy v. 73, 246 Semi-Tropic Co., Anaheim etc. Co. v. 92, 154, 196, 271, 301 Senior v. Anderson 70, 71, 76, 93, 100, 106, 140, 141, 155, 162, 165, 181, 191, 204, 205, 210, 224, 246, 267, 279 Seymour, Wright v. 116 Page Sharpe, Beers v. 280 Shaw, Flickinger v. 183 Shenandoah etc. Co. v. Mor- gan 80, 219, 248 Sliopard, Tulare Irr. Dist. v. 45, 46 Sherman v. Fall River etc. Co. 239 Sliirley, Barnard v. 239 Shoemaker v. Hatch 76 Siober v. Frink 263, 268, 269 Sill, Hartzall v. 290 Silver Creek etc. Co. v. Hayes 79, 248, 300 Silver, Swamp Land Dist. v. 122 Silver etc. Co., Valealda v. 276 Simpson, Eddy v. 6, 83, 154, 161, 270 Simpson, Lobdell v. 70, 71, 249, 290, 302 - Simpson v. Williams 205 Sims V. Smith 238 Slade V. Sullivan 242 Slavin, McCord v. 123 Slosser v. Salt River Co. 86 Smith, Brown v. 207, 224 Smith, Burdge v. 98 Smith V. Corbitt 181, 182, 215, 217, 296, 298 Smith V. Deniff 37, 53, 89, 98, 103, 111 Smith V. Doe 17, 18 Smith V. Green 248, 278 Smith V. Hawkins 52, 71, 89, 93, 140, 162, 190, 193, 205, 211, 224, 263, 268, 273, 274, 275, 276, 277, 278, 282 Smith, Hill v. 12, 219, 220, 223, 234, 235 Smith, Jatunn v. 140, 282 Smith V. Logan 182 Smith, McKinney v. 70, 204, 205, 215, 219, 224, 270 Smith V. O'Hara 72, 87, 180, 184, 185, 224 Smith, Sims v. 238 Snow V. Parsons 290 Southern Cal. Co., De Barker V. 224 Southern Cal. etc. Co. v. Wil- shire 217, 298, 300, 302 Southern Pac. Ry. v, Dufour 130 Southside etc. Co. v. Burson 73, 211, 217 Southside etc. Co., Merrill v. 286 South Tule etc. Co. v. King 88, 185 TABLE OF CASES. Page South Yvib.-i Water Co. v. Rosa "fi Spargur v. Hurd 241, 281 Spicer, Reed v. 192 Spring Creek etc. Co., Tar- tar V. 17, 18, 75 Spring Valley etc. Works v. Fifield 250, 280, 804 Stafford, Gould v. 79, 293, 296, 297, 299, 302 Standard Oil Co., Kinnaird V. 239 Standart, Posachanc etc. v. 205 Standart etc. Co. v. Round Valley etc. Co. 181 Standford v. Felt 79, 122, 241, 281, 296, 297, 301 Steinberg v. Meyer 246 Stein Canal Co. v. Kern Is- land etc. Co. 224 Stein, Roder v. 191, 206 Stenger v. Thorp 37 Stevenson, Edgar v. 70, 79, 93, 105, 224, 291 Stevenson, Reno etc. Co. v. 29, 38, 57, 359 Stewart, Boise City etc. Co. V. 61, 195 Stimson, Alessandro Trr. Dist. 45 St. John V. Kidd 268, 276 St. Louis etc. Co., Wolf v. 202 Stockman v. Riverside etc. Co. 196, 271 Stone V. Bumpus 155, 189, 196, 224, 236, 271 Stone, Hoffman v. 84, 160, 264 Stoneman, Bean v. 192, 199, 201, 205 Story, Hewitt v. 30, 46, 276 Stowell, Allen v. 245 Stowell V. Johnson 59 Strait V. Brown 124, 130, 226 Strait, Irwin v. 165 Stranahan, Table Mt. M. Co. V. 184 'Strickler v. Colorado Springs 217 Strong V. Baldwin 205, 248 Sturr V. Beck 21, 37, 65, 78, 80, 106 St. Vrain etc. Co., Beaver etc. Co. v. 208, 269 Suffolk etc. Co. V. San Miguel etc. Co. 238 Suisun V. De Frietas 95, 160, 247 Sullivan, Dorris v. 87, ISO Sullivan v. Northern Springs Min. Co. 225 Page Sullivan, Slade v. 242 Superior Court, Johnson v. 245 Superior Court, Glide v. 123 Superior Court, Newman v. 122 Swamp Dist. v. Feck 122 Swamp Dist. v. Glide 123 Swamp Land Dist. v. Gwynn 122 Swamp Land Dist. v. Haggin 122 Swamp Land Dist. v. Silver 122 Swamp Land Dist. v. Wilcox 122 Sweeney, Schultz v. 270 Sweetman, Hoye v. 244 Swett, Heckman v. 122 Swift V. Goodrich 88, 192 Swift, Green v. 116 Table Mt. M. C. v. Strana- han 184 Talbot V. Butte etc. Co. 280 Talcott V. Mastin 88 Tangeman, Learned v. 297 Tartar v. Spring etc. Co. 17, 18, 75 Taylor v. Abbott 76, 103, 106, 151 Taylor, Marshall v. . 122 Taylor, Union etc. Co. v. ' 184 Telluride etc. Co. v. Rio Grande etc. Co. 22, 241 Tenney v. Miners' etc. Co. 70, 202, 203, 242 Terwilliger, Griseza v. 143, 180, 184, 185, 187, 189 Thorp, Stenger v. 37 Thomas v. Guiraud 190 Thompson, Board of Super- visors V. 46 Thompson, Boskowitz v. 45 Thompson v. Lee 70, 152 Thompson, Miller v. 247 Thompson, Ferris Irr. Dist. v. 45 Thorp V. Freed 29, 154 Ticlcke, Barkley v. 53, 184, 188 Tilton, Gilman v. 290 Tingley, Murray v. 142, 148, 152 Titconib v. Kirk 5, 146, 193 Todd V. Cochell ' 202 Todd, Gelwicks v. 181 Todd's Vallpv etc. Co.. White V. ■ 156. 204. 205 Tolles. Lake v. 81 Tomlinson, Ballard v. 239 Topoka etc. Co., Metropoli- tan etc. Co. V. 204 Trombley v. Lutaman 38 Tregea, Board of Directors v. 44 XXXVlll TABLE OF CASES. Page Tregea v. Modesto Irr. Dist. 46 Tregea v. Owens 45 Truckee Lumber Co., People V. 250, 293 Tulare Irr. Dist. v. Shepard 45, 46 Tulare County v. May 123 Tuolumne etc. Co. v. Chap- man 242, 245 Tuolumne etc Co., Hoffman V. 202 Tuolumne etc. Co. v. Maier 76 Tuolumne etc. Co., Turner v. 202, 278 Turlock Irr. Dist. v. Williams 44 Turnbull, People v. 45 Turner v. Mirfield 239 Turner, Keclamation Dist. v. 122 Turner v. Tuolumne etc. Co. 202, 278 Tyler, Cave v. 93, 96, 97, 98, 100, 107, 109, 110, 280, 303 Tyler v. Wilkinson 290 Tynon v. Despain 76 Underwood, Burdge v. 18 Unger v. Mooney 283 Union etc. Co. v. Dangberg 46, 70, 74, 80, 166, 185, 204, 205, 210, 211, 246, 280 Union etc. Co., Howcroft v. 129 Union etc. Co. v. Taylor 184 United States v. North Bloom- field Co. 236 United States v. Eio Grande etc. Co. 21, 65, 67, 68, 116 Upiohn V. Eichland Town- ship 239 Urton, Fitzgerald v. 17, 18 Utah etc. Co., Whitmore v. 127, 128, 129 Utt V. Frey ]43, 160, 263, 268 Valcalda v. Silver etc. Co. 276 Van Bibber v. Hilton 37, 78, 93, 249 Van Loben Sels, Eeclamation Dist. V. 123 Vansickle v. Haines 34, 38, 57, 76, 282, 292, 359 Varni, Eazzo v. 113 Vaughn, Butte Canal etc. Co. V. 220, 234, 264, 265, 272 Ventura etc. Co. v. Meiners 299 Verdugo, Glasell v. 299 Page Vernon Irr. Co. v. Los An- geles 4, 80, 105, 293, 302 Vestal V. Young 199, 241 Vickers, Nephi Irr. Co. v. 191 Vineland etc. v. Azusa etc. 125, 126, 127, 128, 129, 135, 152, 217, 226, 413 Vineland Irr. Dist., Baxter v. 45 Vivian. Mud Creek etc. Co. v. 37 Wabash etc. Co., Cooper etc. Co. v. 230 Wahle V. Eeinbach 239 Walderon, Ware v. 201 Waldron, Lorenz v. 201, 241, 242 Walkinshaw, Katz v. 121, 124, 131, 132, 133, 135, 152, 225, 226, 227,228,229,231, 233,246, 248, 271, 291, 294, 295, 299, 302 Walker v. Emerson 103, 241, 281 Walker v. Lillingston 191, 294 Walker, Ware v. 201, 217 Wallace, Walsh v. 143, 154, 360 Ware v. Walker 201, 217 Waring v. Crow 275, 276 Watterson v. Saldunbehere 105, 141, 247 Watkins etc. Co. v. Clements 37 Weaver, Conger v. 13, 34, 52, 70, 74, 75, 89, 139, 145, 149, 151, 162 Weaver v. Eureka etc. Co. 121, 146, 155, 166 Webster, Mt. Carmel Fruit Co. V. 89, 179, 192 iWege, Gutierrez v. 298, 299 Weill V. Baldwin 203 Weinrich v. Hensley 123 Weiss V. Oregon etc. Co. 244 Welch V. Garrett 53, 268 Welch, Eupley v. 18, 19, 154 Wells V. Mantes 140, 141, 143, 145, 146, 148, 151, 152, 158, 159, 164, 266, 273 Wells V. Kreyenhagen 157 West, Campbell v. 192 West Los Angeles, Yarwood V. 125, 294 Weston, Fairplay etc. Co. v. 196 West, Eeclamation Dist. v. 123 West Walker Eiver Ditch Co., Burbank v. 202 Whaley, Blankenshop v. 183 Wheatley v. Baugh 232 Wheeler, Bree v. 282 Wheeler, Pugh v. 290 TABLE OF CASES. Page White, Crippen v. 335 White, Farmers' etc. Co. v. 26, 54, 207, 257 White V. Todd's etc. Co., 156. 204, 205 Whitesides, Burnett v. 264 Whitemore, Eliot v. 210 Whitmore v. Utah etc. Co. 127, 128. 129 Whitson, California Pastoral Co. V. 123 Whittaker v. McBride 65 Wholley v. Caldwell 85, 304 Wicks, Hobart v. 76, 215 Wiggins V. Muscupiabe etc. Co. 85, 296, 298, 299 Wilcox V. Hausch 92, 264 Wilkins V. McCue 113, 122, 140. 282 Wilkinson, Tyler v. 290 Willett, Clark v. 191, 241, 242 Willey V. Decker 29, 32, 37, 38. 55, 60, 78, 86, 118, 119, 194, 240 Williams v. Board of Super- visors 122 Williams, Gibbs v. 115 Williams v. Harter 76, 181, 182, 194 Williams, Heath v. 290 Williams, People v. 122 Williams, Simpson v. 205 Williams, Turlock Irr. Dist. V. 44 Wilshire, Southern Cal. etc. Co. V. 217, 298, 300, 302 Page Wilson V. Cleveland 268 Wilson, Sander v. 37 Wing, Clough v. 38, 58, 334 Wunsor, Crane v. 153 Winter, Schultz v. 247 Winter v. Winter 278 Wixon v. Bear River etc. Co. 17, 34, 74, 236 Wolf V. St. Louis etc. Co. 202 Womersley v. Church 239 Woodbridge Dist., Hutson v. 122 Wood V. Edes ' 290 Wood V. Etiwanda etc. Co. 53, ■98, 160, 263 Wood V. Lowney 187 Woodruff, Healy v. 93, 96, 99, 100, 105, 106 Woodruff v. North Bloom- field Co. 236, 238, 244 Woods, Crandall v. 11, 33, 35, 37, 78, 80, 84, 143 Woolman v. Garringer 74, 150, 153, 164 Wright V. Seymour 116 Yankee Jim etc. Co. v. Crary 88, 180, 278 Yarwood v. West Los An- geles 125, 294 Young, Vestal v. 199, 241 Yuba Co. V. Cloke 155 Zimmler v. San Luis etc. Co. 87, 193, 203 The general law of appropriation of water will be found discussed in the following books; YALE ON MINING CLAIMS AND WATEE RIGHTS (1867). Best for the history of the subject and its discussion of the early Califor- nia cases. BLANCHARD AND WEEKS ON MINING CLAIMS AND WATER RIGHTS. POMEROY ON RIPARIAN RIGHTS. Written to stay the encroach- ment of the law of appropriation upon the common law of riparian rights, and to vindicate what is now called the California doctrine — a recognition of both systems. An edition edited by H. C. Black is referred to as Black's Pomeroy. In the present book, references are to the original edition of 1887. LINDLEY ON MINES. For the general public land law, and for the principles governing pollution of waters by mining. WORKS ON IRRIGATION (1900). Contains a discussion of the laws of canal companios as public service corporations. KINNEY ON IRRIGATION (1894). LONG ON IRRIGATION (1901). FARNHAM ON WATERS (1904). ARTICLE "IRRIGATION," in 17 American and English Encyclo- pedia of Law, 485, by the author of "Long on Irrigation." NOTES TO AMERICAN STATES REPORTS AND LAWYERS' RE- PORTS ANNOTATED, especially 43 Am. Dec. 269, 60 Am. St. Rep. 799, 93 Am. St. Rep. 711, 30 L. R. A. 665. (xl) WATER RIGHTS WESTERN" STATES. CHAPTER I. HISTORICAL REVIEW. A. ORIGIN OF THE DOCTRINE OF APPROPRIATION. *! 1. California before the arrival of pioneers. S 2. Mexican law. § 3. Customs of miners. § 4. The eustonis and the court. § 5. Irwin v. Phillips. B. DEVELOPMENT OF THE DOCTRINE. § 6. Irwin v. Phillips followed. § 7. Was this new rule to be made to conform to the common law of riparian rights? S S. Was this judicial legislation? § U. How far applicable to other pursuits than mining? C. EARLY LEGISLATION. S 10. Federal statutes of 1866 and 1870. S 11. Comments on these Federal statutes. § 12. State legislation in California. D. THE CONFLICT OVER RIPARIAN RIGHTS. § 18. Private title to land and new industries. 5 14. The law and irrigation. 5 If). Riparian rights before Lux v. Haggin. J 16. Lux V. Haggin. 5 17. Result of Lux v. Haggin. § 18. Principle of Lux v. Haggin approved in nine States. § 19. Principle of Lux v. Haggin rejected in seven .States. Water Rights— 1 2 WATER EIGHTS IN THE WESTERN STATES. § 1 E. LATER AND RECENT LEGISLATION. § 20. Irrigation codes. § 21. Irrigation districts. § 22. Statement of the doctrine of appropriation. A. ORIGIN OF THE DOCTRINE OF APPEOPRIATION. ^ 1. California Before the Arrival of Pioneers. — The law of appropriation of water originated among the miners of California, in the earliest days of that State, whence it has been copied in all the Western States and Terri- tories viz. : Arizona, California, Colorado, Idaho, Kan- sas, Montana, Nebraska, Nevada, New Mexico, North Da- kota, Oklahoma, Oregon, South Dakota, Texas, Utah, Washington and Wyoming.^ After the discovery of gold in California in 1849, the men who came there in such numbers were from all parts of the country, even of the world. Their spirit w^as the rough-and-ready one of the pioneer, who meets new conditions in the w^ay best at hand, not bound to follow the w^ays of the places he left behind if they do not suit his purpose. Their very com- ing to a strange wilderness w^as itself a breach of pre- cedent. They left behind them much of the established law of real property. - Nor did they find much established law of any kind where they came. California was, at the l>eginning of the century, a Spanish missionary territory. That part to which the miners came was known to the Mexicans as Alta California, and was regarded as only a set of colonies extending northward from the original settle- ments in Baja California, the peninsula, which is still Mexican territorj-.^ Under the Spanish rule that pre- 1 See infra, sees. 18, 19. 2 As to the common-law rules concerning waters, see chapter XTH, infra.. 3 See Royce, "California," in the American Conunonwealth Series. § ] HISTORICAL REVIEW. 3 ceded the Mexicau lievoliition, tliese colonies were on the outskirts of civilization, needing but few laws, and little regard being paid to the strict letter of even those. ^^'itll the revolution which severed Mexico from the Spanish Crown came disorder and disorganization. The missions were broken up, the presidios neglected, and no new system w^as adopted and enforced in place of the one which had fallen into disuse. Land haerhaps but seldom, be found, who were capable of making the necessary surveys. This condition of things led, in some cases without taking any steps to obt^ain a title, in others after having taken only the in- cipient proceedings, to the practice of taking possession, or at least of claiming, large tracts of land which had not been suiweyed, and the boundaries of which were undefined and even unknown. This system continued until the conquest of the country — until the discovery of gold — until the Americans thronged into Northern California, a portion of the country which could be said previously to have contained scarcely any po]uila- tion except Indians.^ 4 Preface by Judge Bennett to 1 Cal. 4 WATER. EIGHTS IN THE WESTEEN STATES. §§ 2, 3 ^ 2. Mexican Law. — What little Mexican law there had been npon the use of waters would, even if continued in force, have interfered little with the miners helping them- selves to the water they wanted and had to have. The Mexican law regarded the waters as held by the pueblos (or agricultural villages) in trust for farmers on neigh- boring lands, and so left the water open to use by all in the neighborhood. This right in the whole neighbor- hood Avas superior to that of the individual proprietors through whose fields the stream chanced to run.^ A little of this Mexican law is of force to-day, in Cali- fornia, in that some cities, notably, after much litiga- tion, Los Angeles, have been held to succeed to the rights of a pueblo to public water supply.*^ The old Mexican law is worth mentioning chiefly as showing that what law there had been put little impediment in the way of the miners helping themselves to the waters they needed. § 3. Customs of Miners. — The miners were thrown upon their own resources, and had nothing to rely upon but the customs that they themselves by their acts and acquiescence established, and by equally rough-and ready methods enforced. The fundamental principle to which these customs clung was that of "first come first served." It was the same in everything pertaining to mining. The right to mine, first of all in importance, was protected in the first possessor of the mining ground, and that has grown into the elaborate and in- tricate system of mining law Avhich we have to-day. Water was a necessary incident to mining. It followed the same rule of first possession. Historically, the law of appropriation of waters is merely a branch of mining 5 Lux V. Haggin, 69 Cal. 255, 10 Pac. G74; Vernon Trr. Co. v. Los Angeles, 106 Cal. 237, 39 Pac. 762. G Ibid; Feliz v. Los Angeles, 58 Cal. 73; Los Angeles v. Poraeroy, 124 Cal. 597, 57 Pac. 585. § 3 HISTOKICAL REVIEW. 5 law. The cTistoni was tliat the first to use tlic watci- had the exclusive i'i<;ht to it.' These customs did not follow the coiiiiiion-Jaw rules of riparian rights because, in the first place, the miners, left so lariicly to themselves, did not know those i-ules. The miners were of all nationalities, froui places where many different systems of law prevailed. They went off into the wilderness where the law was not represented at all. Because, in the second place, the common-law rules would have been entirely unsuited to the condi- tions. Under such conditions the fine points of the law cannot be enforced. The rule of "first come first served" is nine points of the law, anyway, under such conditions, for defense equall}^ as much as for ott'ense, though the tenth point may be insisted upon by some distant court. It is easily understood, and, in a new re. Rupley V. Welch, 23 Cal. 452. 41 A. C. July 26, 1S66, sec. 9. 42 A. C. July 9, 1S70, sec. 17. 20 WATER EIGHTS IN THE WESTERN STATES. § 11 utes, section 2339, as : "This sectiou, which by its turbid style and grammatical solecisms, more surely th^m by the enacting clause of the act, is shown to be a produc- tion of Congress, may be found on page 253, volume 14, of the Statutes at Large. "In its adoption there appear to have been three dis- tinct objects in view: First, the confirmation of all existing water rights ; second, to grant the right of way over the public land to persons desiring to construct flumes or canals for mining or manufacturing purposes ; and third, to authorize the recovery of damages by settlers on such land, against persons constructing such ditches or canals, for injuries occasioned thereby. That this section grants the right of way over public land to all who may desire to construct ditches or canals for mining or agricultural purposes, is about as clear and certain as the objects and purposes of the acts of Con- gress usually are. It is true, the most apt words to in- dicate this purpose are not employed. That could scarcely be expected ; but the right of way for the con- struction being 'acknowledged' and confirmed, indicated the grant of a new right rather than the confirmation . of an old one,^*^ enjoyed at the time of the passage of the act. The confirmation or recognition of existing rights seems to be the object sought to be accomplished by the first clause of the section. To hold that the second clause simply reiterated the same thing might be warranted by the practice of Congress, but not by the rules of construction which must govern the courts in the interpretation of all laws. Again, the last provi- sion of the section strengthens the view that such right of way is granted, for it authorizes the recovery of dam- ages by the settler on the public land for injuries result- 4.'! Cf., however, nifru^ upon this section. § 11 HISTORICAL REVIEW. 21 ing from the construction of ditches and canals after the passage of the act."'*^ The following from Jennison v. Kirk, 98 U. S. 453, (per Mr. Justice Stephen J. Field), will show the his- tory of these Federal statutes; and this is also a con- venient place to set forth the views of the supreme court of the United States on the law of appropriation :^'' "The object of the section was to give the sanction of the United States, the proprietor of the lands, to possessory rights, which had previously rested solely upon the local customs, laws and decisions of the courts, and to prevent such rights from being lost on a sale of the lands. The section is to be read in connection with other provisions of the act of which it is a part, and in the light of matters of public history relating to the min- eral lands of the United States. The discovery of gold in California was followed, as is well known, by an im- mense immigration into the State, which increased its po})ulation within three or four years from a few thou- sand to several hundred thousand. The lands in which the precious metals were found belonged to the United States, and were unsurveyed, and not open, by law, to occupation and settlement. Little was known of them further than that they were situated in the Sierra Nev- ada Mountains, Into these mountains the emigrants in vast numbers penetrated, occupying the ravines, gulches and canyons, and probing the earth in all direc- tions for the precious metals. Wherever the}' went, 4 4 Held, under this act, the question of eminent domain is not involved; the building of a ditch "was upheld without condemnation proceedings. 45 See, also, Atchison v. Peterson, 87 U. S. 507, 22 L. ed. 414; Basey V. Galhigher, 87 U. S. 670, 22 L. ed. 452; Broder v. Natoma Water Co., 101 U. S. 247, 25 L. ed. 790; United States v. Bio Grande Irr. Co., 174 U. S. 690, 19 Sup. Ct. Rep. 770, 43 L. ed. 1136; Sturr v. Beck, 133 U. S. 541, 10 Sup. Ct. Rep. 350, 33 L. ed. 761; Kansas v Colorado, 185 U. S. 125, 22 Sup. Ct. Rep. 552, 46 L. ed. 838; Boar 22 WATER RIGHTS IN THE WESTERN STATES. § 11 they carried with them that love of order and system and of fair dealing which are the prominent character- istics of our people. In every district they occupied, they framed certain rules for their government, by which the extent of ground they could severally hold for min- ing was designated, their possessory right to such ground secured and enforced, and contests between them either avoided or determined. These rules bore a marked similarity, varying in the several districts only according to the extent and character of the mines; dis- tinct provisions being made for different kinds of min- ing, such as placer mining, quartz mining, and mining in drifts or tunnels. They all recognized discovery, fol- lowed by appropriation, as the foundation of the pos- sessor's title, and development by working as the con- dition of its retention. Alid they were so framed as to secure to all comers, within practicable limits, absolute equality of right and privilege in working the mines. Nothing but such equality would have been tolerated by the miners, who were emphatically the lawmakers, as respects mining, upon the public lands in the State. The first appropriator was everywhere held to have, within certain Avell-deflned limits, a better right than others to the claims taken up; and in all controversies, except as against the government, he was regarded as tlie original owner, from whom title was to be traced. But the mines could not be worked without water. ^Vithout water the gold would remain forever buried in the earth or rock. To carry water to mining localities, \\h('n they were not on the banks of a stream or lake became, therefore, an important and necessary business in carrying on mining. Here, also, the first appropria- tor of water to be conveyed to such localities for mining l.ake etc. Co. v. (Jiirlaiid, 1G4 U. S. ]; Telluride etc. Co. v. Rio Grande etc. Co., 187 U. S. r)79; Gutierres v. Alhuquorque etc. Co., 1S8 U. S. 545. § 11 HISTOEICAL REVIEW. 23 or other beneficial purijoses was recognized as having, to the extent of actual use, the better right. The doc- trines of the common law respecting the rights of ripar- ian owners Avere not considered as applicable, or only in a very limited degree, to the conditions of miners in the mountains. The waters of rivers and lakes were, (•(msequently, carried great distances in ditches and li limes, constructed with vast labor and enormous ex- l)ciiditures of money, along the sides of mountains and through canyons and ravines, to supply communities en- gaged in mining, as well as for agriculturists and or- dinary consumption. Numerous regulations were adopted, or assumed to exist, from their obvious just- ness, for the security of these ditches and flumes^ and for the protection of rights to water, not only between dif- ferent appropriators, but between them and the holders of milling claims. These regulations and customs w^ere appealed to in controversies in the State courts, and re- ceived their sanction ; and properties to the value of many millions rested upon them. For eighteen years, from 1848 to 1866, the regulations and customs of miners, as enforced and molded by the courts and sanctioned by the legislation of the State, constituted the law govern- ing property in mines and in water on the public min- eral lands. Until 1866, no legislation was had looking to a sale of the mineral lands. The policy of the country had ])reviously been, as shown by the legislation of Con- gress, to exempt such lands from sale. In that year, the act, the ninth section of which we have quoted, was passed.'' "The Senator of Nevada, Honorable William M. Stewart, the author of the act, in advocating its pass- age in the Senate, spoke in high praise of the regula- tions and customs of miners, and portrayed in glowing language the wonderful results that had followed the 24 WATER RIGHTS IN THE WESTERN STATES. § 11 system of free mining which had prevailed with the tacit consent of the government. The legislature of Cali- fornia, he said, had wisely declared that the rules and regulations of miners should be received in evidence in all controversies respecting mining claims, and, when not in conflict with the constitution or laws of the State or of the United States, should govern their determina- tion ; and a series of wise judicial decisions had molded these regulations and customs into 'A comprehensive system of common law, embracing not only mining law, properly speaking, but also regulating the use of water for mining purposes.' The miner's law, he added, was a part of the miner's nature. He had made it, and he trusted it and obeyed it. He had given the honest toil of his life to discover wealth, which, when found, was protected by no higher law than that enacted by him- self, under the implied sanction of a just and generous government. And the act proposed continued the sys- tem of free mining, holding the mineral lands open to exploration and occupation, subject to legislation by Congress and to local rules. It merely reorganized the obligation of the government to respect private rights which had grown up under its tacit consent and ap- ])roval. It proposed no new s^'stem, but sanctioned, regulated, and confirmed a system already established, to which tlie people were attached. (Cong. Globe, 1st Sess., 39th Cong., pt. IV, pp. 3225-3228.)" It will thus be seen that the Federal statutes (now sections 2339, 2340, Revised Statutes of the United States) merely gave a formal sanction to the rules al- ready established. Those rules had been built up in re- liance on the tacit acquiescence of the United States, the true owner of the lands and waters on which appro- priations were made, and these statutes acquiesced therein expressly, "a voluntary recognition of a pre-ex- § 11 HISTORICAL REVIEW. 25 isting- rio-lit. latlior than the establishment of a new one."^*^ Appropriators to-day, at least in the States following the California system, always claim to deraijjn title ultimately under these Federal statutes.^^ These statutes are prospective in their operation.^^ The contention in Hobart v. Ford (quoted supra), that these statutes established a new right, was dis- posed of by the supreme court of the United States in Broder v. Natoma Water Co., 101 U. S. 274, 25 L. ed. 790, saying : "We are of the opinion that it is the estab- lished doctrine of this court that rights of miners, who had taken possession of mines and worked and de- veloped them, and the rights of persons who had con- structed canals and ditches to be used in mining opera- tions and for purposes of agricultural irrigation, in the region where such artificial use of the water Avas an abso- lute necessity, are rights which the government had, by its conduct, recognized and encouraged and was bound to protect before the passage of the act of 1866, and that the section of the act which we have quoted was rather a voluntary recof/nlfion of a pre-existing right of posses- sion, constituting a valid claim to its continued use, than the establishment of a new one." Further coustiniing these statutes the United States supreme court has said: "It is very evident that Con- gress intended, although the language used is not happy, to recognize as valid the custonmry law with re- spect to the use of water which had grown up among the occupants of the public land under the peculiar neces- sities of their condition ; and that law may be shown by 46 Osgood V. Water Co., 56 Cal. 571; Lux v. Haggin, 69 Cal. 255, 10 Pac. 674; Broder v. Natoma Water Co., 101 U. S. 274, 25 L. ed. 790; Pomeroy on Riparian Rights, sees. 17, 28. 47 Lux V. Haggin, 69 Cal. 255, at 339, 10 Pac. 674. 48 Tl)id; Long on Irrigation, sec. 27. 26 WATER EIGHTS IN THE WESTERN STATES. § 12 evideuco of the local customs, or hj the legislation of the State or territory, or by the decisions of the court. The union of the three conditions in any particular case is not essential to the perfection of the right by priority ; and in case of conflict between a local custom and a statutory regulation, the latter, as of superior authority, must necessarily control. "^^ In Gutierres v. Albuquerque etc. Co., 188 U. S. 545, it was held that these sections of the Revised Statutes sanction and confirm the statutes of a Territory upon waters as well as the statutes of a State, provided in either case the territorial or State statutes do not come within any constitutional limitations upon the legisla- tive power of a Territory or State. The construction of these statutes as the basis of the law of appropriation is further considered in the next chapter. § 12. State Legislation in California. — Shortly after these Federal laws went into effect, California adopted its codes (1872). In the Civil Code, thirteen sections (1410-1422) were devoted to this subject — a perfectly valid field for State legislation so long as not conflict- ing with the Federal statutes and within the constitu- tional limitations upon the legislative power of a State.^*^ It is a part of the police power.^^ No sub- stantial innovations were made and the California code merely settles, in legislative form, the decisions of the courts already made ; a crystallization of the law of ap- •in Basey v. Gallagher, 87 U. S. 670, 22 L. ed. 452. •"" Lux V. Hagpin, 69 Cal. 255, 10 Pnc. 674; Gntierros v. Albu- querque etc. Co., 188 U. S. 545. -.1 White V. Fanners' etc. Co., 22 Colo. 191, 43 Pac. 1028, 31 L. R. A. 828. ^ 13 HTSTOKTCAI. REVIEW. 27 ])r(>pi'iation. Xo new rules wore incorporated except in minor details that will be hereafter noted.''^ The California code has been the basis of legislation in other States also,^^ and, until the adoption of the recent in-igation codes in the arid States, the law in all the Western States was generally modeled upon the Cali- fornia law as represented by the decisions of the Cali- fornia court and formulated in the Civil Code. Until the enactment of these sections of the Civil Code, there was practically no State legislation upon the subject in any State.^"* Since then there had been practically none in California, though Pomeroy wrote his work on Riparian Rights to urge it. The State legislation in California since then has been chiefly de- voted to irrigation districts, leaving the law of waters in general untouched. But more recently there has been extensive legislation in the arid States.^^ D. THE CONFLICT OVER RIPARIAN RIGHTS. § 13. Private Title to Land and New Industries. — As has been seen, though water was appropriated for all sorts of uses from the start, yet mining was the paramount industry in California and use for mining predominated. But in the seventies and early eighties, conditions in California changed. The public lands were being rap- idly taken up and bought by private persons, under Federal statutes, and the fee passed out of the United States to a large extent. Small farms and large ranches, orchards, towns, sprang up on what had before been vacant land. California grew into a settled agricul- •'■'2 Pomeroy on Riparian Rights, 89; Blanehard and Weeks on Min- ing Claims and Water Rights, 696. See infra, chapter VI. •'>:! See infra, sec. 81. 54 Yale on Mining Claims and Water Rights, 129. :••'■. Infra, see. 20, and Appendix B. 28 WATER EIGHTS IN THE WESTERN STATES. § U tural and commercial community resembling more and more the older States ; and the pioneer conditions that had forced a departure from the common law were pass- ing into the background as mining ceased to be the paramount industry. The rights of the landowner through whose land, now private, a stream flowed, never before used by anyone, became an important ques- tion. § 14. The Law and Irrigation. — The chief industry de- manding water under these new conditions was irriga- tion. A well-known writer^*^ declared that California largely owes her prominence to-day to irrigation, and that irrigation has reached its greatest development in that State. That in irrigation lies the future of the West, there can be no doubt. We may, then, digress a little, to set forth the great conflict of opinion as to whether the common law of riparian rights or the doc- trine of appropriation is more favorable to development of the West, or whether either is inimical thereto. In many of the Western States (a list of which is given below)^^ feeling runs high against any attempt to introduce the common-law rules of riparian rights, and it is said that appropriation is absolutely essential. In Tdaho^^ the court rose against the "phantom of riparian rights," and declared appropriation the "lineal descend- ant of the law of necessity." In Utah,^'* speaking of riparian rights, it is declared : "It was ascertained that cither that doctrine must be modified or that this country must remain a barren waste." In a Nevada case it is said : "Here the soil is arid and unfit for cul- ■'•■• Kinney on Irrigation, sec. 339. r.7 Sec. 19. r.s Drake v. Earhart, 2 Idalio, (756) 716, 23 Pac. .541. r.n Salt Lake City v. Salt Lake etc. Co., 25 Utah, 456, 71 Pac?. 1069. § 14 HISTORICAL REVIEW. 29 tivatioii unless irrigated by the waters of running streams. The general surface of the State is tabki lands, traversed by parallel mountain ranges. The great plains of the State afford natural advantages for conducting water, and lands otherwise waste and value- less become productive by artificial irrigation. The condition of the country and the necessities of the situ- ation impelled settlers upon the public land to resort to the diversion and use of the waters. This fact of itself is a striking illustration and conclusive evidence of the inapplicability of the common-law rule."^^ Quotations to this effect could be repeated from all the States given below, which reject the doctrine of riparian rights in toto.^^ In the rest of the Western States^- opinion is equally strong that the doctrine of riparian rights is a beneficial one when the tvs'O systems are enforced together, and that the law of appropriation alone is a system to be viewed with alarm. In California*^^ the court says that it would not require a prophetic vision to see that the law of appropriation alone would result in a monopoly of the waters of the State by a few individuals. In !Montana^^ the chief justice said that the common law of riparian rights is best adapted to irrigation, saying : "Water for irrigation in this country as naturally be- longs to the lands through which the stream passes, in certain proportions, as in other countries it belongs to the land to supply the necessities of life.'' In Ne- «o Reno Smelting Works v. Stevenson, 20 Nev. 269, 19 Am. St. Rep. 364, 21 Pac. 317. 4 L. R. A. 60. Gi See especially the quotations in Willey v. Decker, 11 Wyo. 496. 100 Am. St. Rep. 939, 73 Pac. 210. C2 See list, sec. IS, below. 03 Lux V. Haggin, 69 Cal. 255, at 309, 10 Pac. 674, qnote.l iiifni. sec. 231. •••4 Thorp V. Freed, 1 Mont. 651. 30 WATER RIGHTS IN THE WESTERN STATES. § 14 braska^^ the court arraigns the general law of appro- priation, and says it breeds monopolies ; leads to antag- onism, strife, dissension, gross exactions, abuses ; is det- rimental to the public welfare; has given rise to inter- minable litigation. The first thing that strikes attention in this conflict of opinion is thus expressed by the Nebraska court :^^ "In all States which, like our own, are but partially arid, the common laAv is in force. The States holding to the contrary rule are wholly within the arid regions." The relative merits of the two systems would appear to depend on the relative scarcity of water where the systems are to be applied. The reason for the difference may lie somewhat deeper. California, where the common law is success- fully in force, as well as appropriation, is as arid in some parts as are any of the other States. In one case,*'' speaking of certain California land, it was said : "The water was so scarce that the land was liable to dry up and blow away." Aridity is, however, outside of California, a characteristic of the pioneer regions to- day; or rather, because entirely arid, certain of the in- terior States are sparsely settled and not largely de- veloped. Beyond the matter of aridity is the more fundamental consideration that the law of appropria- tion is a pioneer doctrine, one to fit the necessities of sparsely settled and rough regions of any kind. Where courts are fifty to a hundred miles across a desert, tak- ing days of teaming over trying roads or even trails to reach them; where the difficulty of enforcing the law- is great; where the rule of first come first served is <;-, Farmers' Irr. Dist. v. Frank (Nel).). 100 N. W. 286. oc MenK v. Coflfey (Neb.), 93 N. W. 713, 60 L. R. A. 910. «7 Hewitt V. Story, 64 Fo<1. 510, 12 C. C. A. 250, 30 L. R. A. 265. § 14 HISTORICAL REVIEW. 31 nine points of the law anyway, for defense equally as much as offense, thoujjh the tenth point may be insisted upon by some distant court ; because that rule is certain, easily understood, and, in a new rejiion, just — in such reo-ions the more finely adjusted system of riparian rights must give way to a rougher system. On the other hand, in regions more closely settled, where the small holdings of land under private title are more numerous, and the water is needed for many but smaller tracts of land and the important enterprises are not merely a few on a large scale; where the machinery of the law runs more smoothly — in such regions the system of ap- l)ropriation alone is inadequate, because based on too selfish a principle. For the more settled regions, even if arid, the California doctrine of combination of the two systems covers the defects of either alone, espe- cially since it is self-adjusting, riparian rights coming in only in proportion to the settlement of the land, and not disturbing the previous appropriations that aided in bringing about that settlement. The histors' we have been tracing of the doctrine shows that the pioneer conditions in California were the fundamental thing in giving rise to the whole doc- trine of appropriation. In early California we saw that it was urged that it was peculiarly a mining doc- trine, not to be applied to agriculture, and the court had much difficulty before it was accepted as a doctrine of general application and outlook. To-day, in the in- terior, the pendulum is swinging the other way; it is called peculiarly an irrigation doctrine. Neither in history nor results does this seem justified. It is neither an irrigation nor a mining doctrine; it is one admirably adapted to all pursuits so long as applied in a new re- gion, but may Avith advantage be supplemented by the 32 WATER EIGHTS IN THE WESTERN STATES. § 14 commou law of riparian rights as the regions become more settled and developed.*^* Tested by results, the following quotation^^ concern- ing the results in the leading State upholding riparian rights as well as appropriation is significant : ''The State of California, constituting a large and important part of the field where the art of irrigation is practiced, is also the great model for the rest of the region regarding the practical development of its w-ater supply, and in the use of water as applied to the purpose of irrigation. California is not only ahead in the de- velopment of her w-ater supply and the number, size and boldness of design of her irrigation works, but that State is also superior to all other States and Territories of the arid West in her method of applying and utiliz- ing the water. It is safe to say that California owes the larger portion of the prominence Avhich it occupies to-day to the results of irrigation." The common law of riparian rights is not regarded as hostile to irrigation Avhere the combined system prevails, under what"*^ is called the California doctrine, the origin of which it is now^ our object to describe. 08 See Clark v. Allaman (Kan.), 80 Pac. 571. In Pomeroy on Riparian Rights, page 264, the learned author says: "As Colorado and these Territories become more fully settled, especially by an agricul- tural population, this system of water regulation will inevitably give rise to an enormous amount of trouble, controversy, and litigation. It is impossible to conceive of legislation tending more than this to create strifes, conflicts, and breaches of the peace. The right of prior appropriation on the public streams was a most fruitful cause of liti- gation in California, as is shown by the great number of reported cases; but this is a feeble illustration of the litigation and controvers;^ which must arise from the statutes of Colorado and of the various Tei'ritories when they come into full operation upon an increasing l)opulation. " 09 From Kinney on Irrigation^ sec. H89 (Mr. Kinney was a member of the Salt Lake Bar). 70 In Willey v. Decker, 11 Wyo. 496, 100 Am. St. Rep. 939, 73 Pac. 210. § 15 HISTORICAL REVIEW. 33 ^ 15. Riparian Rights Before Lux v. Haggin. — Soon aftor the doctrine of appropriation was established, the Cali- fornia court held, in Crandall v. Woods, that the new lule was by no means exclusive of riparian rij^lits, and tliat those rights attached to the land through which a stream flowed, in favor of settlers thereon, as against all but appropriations actually made prior to settlement thereon."^ The riparian land in Crandall v. Woods, however, was a mining claim. Moreover, the opinion was given by Chief Justice Murray at a time when he Wits attempting to shape the doctrine of appropriation as a mere modification of the common law of riparian rights, and not to recognize it as an entirely independent system. Moreover, in most of the cases arising there- after wherein a party was a riparian proprietor, the re- sult would have been the same on the principles of ap- ])r()priation.'- Before Lux v. Haggin it had become the ])revalent impression that there had been a rejection in toto in California of the common law of riparian rights.^-^ Beside the clear decision in Crandall v. Woods, however, there had been continual dicta that riparian rights might vest by prior occupation of land through which a stream flowed, and be good against later appro- priators of the water — e. g., Irwin v. Phillips"^ (the original precedent), saying : "If it is upon a stream the Ti Crandall v. Woods. 8 Cal. 136, affirmed in the same term in Leigl-. V. Independent Ditch Co., 8 Cal. 328. 72 E. g., Ferrea v. Knipe, 28 Cal. 340, 87 Am. Dec. 128. "This is tlie first ease in these reports after that of Crandall v. Wood, 8 Cal. 136, where the controversy concerning water rights was between two farinei-s, or parties engaged in ranching, the plaintiff claiming under a settler": Yale on Mining and Water Rights, 199. The learneil author further remarks that the result in that case would be the same under either rule. "3 See dissenting opinions in Lux v. Haggin; see Pomeroj' on Ri parian Rights, sec. 108. V4 5 Cal. 140. Water Rights— 3 34 WATER RIGHTS IN THE WESTERN STATES. § 16 waters of which have not been taken from their bed, they cannot be taken to his [meaning the landowner's] preju- dice" ; and Conger v. Weaver,'^^ saying : "We have recog- nized the right to appropriate the water where no ripar- ian rights intervene"; and Kelley v. Natoma Water Co., '^''saying: "Possession or actual appropriation must be the test of priority in all claims to the use of water, whenever such claims are not dependent upon the owner- ship of the land through which the water flows."'^^ The question had become confused in this way; and hence the California Civil Code, which was merely declaratory of the decisions, reflected the confusion by its indefinite provision, "The rights of riparian proprie- tors are not affected by the provisions of this title," '^ not saying what those rights were, nor where they at- tached. In Nevada, the case of Van Sickle v. Haines^^ had given the fullest recognition to the common law of riparian rights.^^ § 16. Lux V. Haggin. — A case arose out of the use of the Kern River for irrigation — the case of Lux v. Hag- gin, 69 Cal. 255, 10 Pac. 674, decided in 1886. The de- fendant, J. B. Haggin, having organized an irrigation company, claimed the right to divert the waters of the Kern River by an appropriation to that effect, denying that any vested rights which, under the rule of riparian 75 6 Cal. 548, 65 Am. Dec. 528. 76 6 Cal. 108. 77 And Wixon v. Bear River Co., 24 Cal. .367, 85 Am. Dec. 69; Fer- rea v. Knipe, 28 Cal. 340, 87 Am. Dec. 128, and other eases. See cases cited in Lux v. Haggin, 69 Cal. 255, 10 Pac. 674; Pomeroy on Riparian Rights, sec. 109. Such, also, was the decision in Vansickle V. Haines, 7 Nev. 249 (since overruled), which was much relied on in Lux V. Haggin. 78 Sec. 1422. 79 7 Nev. 249. 80 Quoted infra, pp. 357, 358. § 16 HISTORICAL REVIEW. 35 rights, would liave prevented this, could be recognized in California. It is probably the most extended opin- ion in the California reports, coverinof, as it does, two hundred pages. The previous cases had almost all arisen out of mining, but here was one in the San Joa- quin Valley, and it showed how the law must consider water rights of immense value, though where mining was in no way concerned. The court said, emphatic- ally: "The doctrine of appropriation so called is not ' the doctrine of the common law."^^ But while a rule independent of the common law, it is not destructive of the rule of riparian rights, the court held. Those rights attach to all land as soon as it becomes private, remaining subject to appropriations made prior to that time, but free from all hostile appropriations thereafter made. Citing Crandall v. Woods, supra, the court de- clared this always to have been the law in California. Section 1422 of the Civil Code was held to be merely declaratory of this.^^ Riparian rights would further be protected on constitutional principles ; to deny them would be taking the landowner's property without due process of law, and an unwarranted interference by the State with the primary disposal of the Federal lands.83 The contention that the section of the Civil Code«4 providing that "The rights of riparian pro- prietors are not affected by the provisions of this title," merely referred to riparian rights attaching to Mexican grants, which had never been public land, or else to riparian rights existing at the date of the enactment of the Civil Code, the Civil Code having no prospective operation, were rejected. The system of riparian rights 81 Pages 387-399. 82 Pages 368, 375, 380. 83 Accord Crawford Co. v. Hathaway (Neb.), 93 X W 781 60 L. R. A. 710. ' ' 84 See. 1422. 36 AVATEK RIGHTS IN THE WESTERN STATES. §§ 17, 18 was declared to be in effect in California in full force, subject only to prior appropriations made before tlie land became private. The court decided against Hag- gin. That riparian rights were not done away with by the law of appropriation had all along been the conten- tion of text-writei^.^'' § 17. Result of Lux v. Haggin. — Riparian rights are now firmly established in California side by side with the law of appropriation. In theory, the two systems are of equal importance, and receive equal consideration from the court ; but practically, since the larger part of the lands in California have now passed into private hands, the common law of riparian rights has a wider application. In 1887, the year following the decision in Lux v. Haggin, section 1422 of the Civil Code, protecting the rights of riparian proprietors, was repealed;®*' but as Lux V. Haggin was decided largely independent of that section, the law in California remains undisturbed by this repeal. Many cases since then have affirmed Lux V. Haggin.®" Recent cases in California show a decided tendency to cease citing the older cases on appropria- tion, assuming the doctrines there laid down as estab- lished and familiar law. This indicates that in Cali- fornia the law of appropriation has taken its place as a complete system, past the formative period in which the system may be said still to remain in the younger States. ;^ 18. Principle of Lux v. Haggin Approved in Nine States. — The combined system, appropriation and ripa- 85 Pomeioy on Riparian Rights, chapters HI, VII; Blanehard and Weeks on Mining Claims and Water Rights, p. 696. 80 Cal. Stats. 1887, p. 144. s" Infra, see. 18. § 19 HISTORICAL REVIEW. 37 1-iaii rights existin.n side by side, wliicli, like the law of ;il)i)r<)i)i'iati()ii, was tirst firmly established iu Califor- nia, and has been called the "California doctrine,"*^ is in force ill the followini; Slates: California,'''' Ore- iion,"" W'ashiiiiiton,'" Montana,-'- North Dakota,^-' Ne- braska,"^ Texas,»^ Kansas/-^^ and South Dakota."' The doctrine was also applied in the supreme court of the United States,^^ affirming a case in the court of the TeiTitory of Dakota. i< 19. Principle of Lux v. Hag^n Rejected in Seven States and Territories. — In the following States and Territories the comiiion law of riparian rights is rejected in toto. Lux V. Haggiu, and similar cases being commented upon and considen^, but rejected. This has been called "the 88 Willey V. Decker, 11 Wyo. 496, 100 Am. St. Rep. 939, 73 Pac. 210. 89 Crandall v. Woods, 8 Cal. 136; Lux v. Haggin, 69 Cal. 2.^3, 10 Pac. 674; Van Bibber v. Hilton, 84 Cal. 585, 24 Pac. 308, 598; Alta Land Co. V. Hancock, 85 Cal. 219, 20 Am. St. Rep. 217, 24 Pac. 645; Modoc etc. Co. V. Booth, 102 Cal. 151, 36 Pac. 431; McGuire v. Brown, 106 Cal. 660, 39 Pac. 1060; Hargrave v. Cook, 108 Cal. 72, 41 Pae. 18, 30 L. R. A. 390; Baxter v. Gilbert, 125 Cal. 580, 58 Pac. 129, 374; Bath- gate V. Irvine, 126 Cal. 135, 77 Am. St. Rep. 158, 58 Pac. 442; Rice V. Meiuers, 136 Cal. 292, 68 Pac. 817. 90 Carson v. Gentner, 33 Or. 512, 52 Pac. 506, 43 L. R. A. 130. 91 Benton v. Johncox, 17 Wash. 277, 61 Am. St. Rep. 912, 49 Pac. 495, 39 L. R. A. 107; Sander v. Wilson, 34 Wash. 659, 76 Pac. 280. 92 Smith V. Deniff, 24 Mont. 20, 60 Pac. 398, 81 Am. St. Rep. 408, 50 L. R. A. 741; tliough there is room for doubt as to the effect of this decision. !>.$ Bigelow V. Draper, 6 N. Dak. 152, 69 N. W. 570. '.»4 Crawford Co. v. Hathaway (Neb.) 93 N". W. 781. 95 McGhee etc. Co. v. Hudson, 85 Tex. 587, 22 S. W. 398, 976; Mud Creek etc. Co. v. Vivian, 70 Tex. 170, 11 S. W. 1078; Watkius etc. Co. V. Clements (Tex.), 86 S. W. 733. 96 Clark V. Allaman (Kan.), 80 Pac. 571, follows Lux v. Haggin in effect. 97 Lone Tree Ditch Co. v. Cyclone Ditch Co., 15 S. Dak. 519. 91 X. W. 352; Stenger v. Tharp (S. Dak.), 94 N. W. 402. 98 Sturr v. Beck, 133 U. S. .541, 10 Sup. Ct. Rep. 350, 33 L. ed. 761. 3S WATER RIGHTS IN THE WESTERN STATES. § 20 Colorado system" :^^ Arizona,^^^ Colorado/^^ Idaho/"^ New Mexico/^^^ Nevada,i*^^ Utah,^*^^ and Wyoming.^o^ in some of these the decision was the result of constitu- tional or statutory provision, cited and construed in the cases. In others, notably Nevada, it Avas reached with- out statute. In all of them the point is to-day covered by statute, however.^^^ The constitutional provision relied on in Colorado was Colorado Constitution, article 16, sections 5 and 6; in Idaho, article 15, section 3; in Wyoming, article 1, section 31. E. LATER AND RECENT LEGISLATION. § 20. Irrigation Codes. — In California and some of the States following the California doctrine, there has been no recent legislation directly affecting the law of waters. But in other States, chiefly the arid States, extensive codes have been adopted, within the last few yeai's, based solely on the law of appropriation, and chiefly for the encouragement of irrigation, though ap- plying to all pursuits. This legislation is still going on. In Utah, a code was adopted by the 1903 session of the 09 Long on Irrigation, sec. 6. 100 Clough V. Wing, 2 Ariz. 371, 17 Pac. 453; Austin v. Chandler (Ariz.), 42 Pac. 488. 101 Hammonfl v. Rose, 11 Colo. 526, 7 Am. St. Rep. 258, 19 Pac. 466; Coffin V. Left Hand Ditch Co., 6 Colo. 443. 102 Drake v. Earhart, 2 Idaho, 716, 23 Pac. 541. io:{ Trambley v. Luterman, 6 N. Mex. 15, 27 Pac. 312; Albuquerque etc. Co. V. Gutierrez, 10 N. Mex. 177, 61 Pac. 357. 104 Reno etc. Co. v. Stevenson, 20 Nev. 269, 19 Am. St. Rep. 364, 21 Pac. 317, 4 L. R. A. 60; though Vansickle v. Haines, 7 Nev. 249, had been the other way. 105 Cole V. Richards Trr. Co., 27 Utah, 205, 101 Am. St. Rep. 962, 75 Pac. 376. 106 Moyer v. Preston, 6 Wyo. 308, 71 Am. St. Rep. 914, 44 Pac. 845; Willey v. Decker, 11 Wyo. 496, 100 Am. St. Rep. 939, 73 Pac. 210. 107 Infra, see. 20, anislation on this subject and this year a statute was passed appointing code commis- sioners to draft a new code to be presented to the next lec;islature."" In eio-ht of these States and Territories this legislation was adopted in whole or in large part in 1905. More or less elaborate codification in this line, hav- ing common characteristics, will be found in Colo- rado,"^ Idaho,"- Nebraska,"' Nevada,^" New Mex- ico,"^ North Dakota, Oklahoma,"^ Oregon,^ i' South Dakota," ^" Utah,"'> and Wyoming.^ 20 j^ Arizona^ 21 there are statutes somewhat similar to the above, but somewhat influenced by the civil law of acequias bor- rowed from Mexico.^22 The main features of this new legislation are solely administrative. The substantive law concerning th^ extent of right, loss of right, and similar matters, re- mains as under the decisions of the courts, largely the 10s Laws Utah, 1903, c. 100. 109 Laws Utah 1905, e. 108. no Laws Wyo. 1905, p. 26. Likewise Montana, Stats. 1905, p. 184. 111 Const., art. 16; Mills' Ann. Stats., 1, 2, and the 1905 edition of volume 3. See Appendix. 112 Const., art. 15; Laws 1903, p. 223, with a few amendments in 1905. ii'i Comp. Stats. 1903. See Appendix. 114 Comp. Laws 1900, nnd Sess. Laws 1901, 1903, 1905. See Ap- pendix. 115 Laws 1905. p. 270, c. 102, and p. 284, c. 104. 116 Laws 1905, p. 274, e. 21. For North Dakota, see Appendix B. 117 Laws 1905, c. 228, p. 401. 118 Laws 1905, p. 201, c. 132. no Laws 1905, c. 108. See Appendix. 120 Const., arts. 1, S; Rev. Stats. 1899, and Session Laws 1901, 1903, 1905. See Appendix. 121 Rev. Stats. 1901, p. 1045. See cases cited ante, sec. 19. 122 See, also, Texas Sayles' Civ. Stats. 1900. art. 3115 et seq. 40 WATER EIGHTS IN THE WESTEEN STATES. § 20 oarlT California decisions. Tlie new statutes are chiefly administrative, providing for a proper enforcement of the rights defined by ease law, and for a policing of the waters. The essentials of all these statutes consist in an enactment of the law of appropriation as the sole law on the subject of waters; a reorganization of the State for administrative purposes as concerns waters; a census, determination and listing of all existing ap- propriations; a comprehensive method of making ap- propriations hereafter; and various provisions for pol- icing the waters.^2^ In several, irrigation districts 123 The state engineers of six states met aud formed the Associii- tion of State Engineers at Salt Lake City in May, 190-4. The first regular meeting was held at Boise City, Idaho, in September, 1904. At this meeting the following resolutions were unanimously adopted- 1. "Rcfiohrd, that it is the sense of this association that the vari- ous States have the authority to regulate the diversion, appropria- tion and the use of water under the irrigation administrations now provided. 2. " Rciiolred, that it is the sense of this association that rights to the use of water should be limited to a definite volume for each sea- son rather than to a definite flow for an indefinite period, and that the relation between the two should be regulated in accordance with average local conditions, some latitude being given to the irrigation administration. 3. "Resolved, that it is the sense of the association that the State Engineers should have discretionary powers in the approval of appli- cations for new appropriations, subject to the review of the courts. 4. '^ Rcdolifd, that it is the sense of this association that the maps accompanying applications for permits should be drawn from actual surveys, and that sufficient time should be allowed for perfecting maps, at the discretion of the State Engineer. 5. "Resolved, that it is the sense of this association that all water rights should be appurtenant to the land irrigated and inseparable therefrom except through a regular legal procedure of which the pub- lic has full knowledge, and beneficial use should be the basis, the measure and limit of the right. 6. "Resolved, that it is the sense of this association that the State Engineer should be made the responsible executive of the adminis- tration of water rights, and should be authorized to appoint, or at least nominate, his subordinates in the service." § 20 HISTOEICAL REVIEW. 41 based on the Wriulit Ad of Cjilifoinia nrc also ])rovi(led for.i2^ The common la^\• (»f riparian rights is not expressly mentioned in any of these statutes; hut is indirectly' rejected in toto by a provision that the right to appro- priate unappro])riated water sliall never be denied;''^'' or a provision that the liglit to waters can arise by ap- jirojn'iation and in no other way,^-'' adding a phrase common in the States rejecting riparian rights m toto, that "beneficial use shall be the basis, the measure and the limit of all rights to the use of water."^-" In Idaho it is declared that the right to appropriate unappropri- ated Avater shall never be denied, and that priority of appropriation gives the better right in appropriation of water.' ^^ And similar provisions exist in all these statutes. The only statute liaming the common law of riparian rights in order to reject it is that of Arizona, which has not yet modeled its statutes upon the new irrigation codes. The Arizona statute says : "The common-law doc- trine of riparian water rights shall not obtain or be of any force in this Territory."^29 Most of the States adopting tliis legislation hostile to common law of riparian rights are, as has been said, the arid States, where the courts had previously taken the same attitude. In Nebraska, North Dakota, Oregon and South Dakota, however, the courts had previously followed the California doctrine recognizing and enforc- 124 Iiifni, sec. I'l. 125 For example, Oolo. Const., art. 16, see. 6: Nob. C'omp. Stats. 1903, sec. 6451; Wyo. Const., art. 8. see. .3. i-i! For example, Nov. (oiiip. Laws 190(1, see. S.')!!; I'tali Laws ]90."). e. 108, sec. 34. 127 For example, Xev. Stats. U»08. \^. •J4, soe. 1; Utah Stats. U)0.";, c. 108, sec. 49. 12.S Idaho Const., art. 1."). see. 3. 12!) Rev. Stats. 1901, see. 41(i8 (Civil Coiled. 42 WATER EIGHTS IN THE WESTEEN STATES. § 20 ing the rights of riparian proprietors. In the last three, these statutes being only adopted within the rear, there has been no cliance for testing their effect upon the exist- ing rights of riparian proprietors; but in Nebraska the matter gave rise to much litigation, and the court held^^^ that it would be beyond the power of the legislature, after riparian rights had been recognized and vested, to deprive riparian owners of those rights hitherto enjoyed by them. Statutes such as these, the court held, may prevent anyone from acquiring riparian rights under the common law hereafter; but that is all. They can- not take away the rights of existing riparian owners, a.s it would be a taking of property Avithout due process of law. In its opinion the court says : ^'The right of a riparian proprietor to the reasonable use of water flowing in a natural channel is property, whi(^h is protected by the aegis of the constitution, and of which he cannot be deprived against his will, except for public use, and upon due compensation for the in- jury sustained. If the legislature had undertaken to sweep away and abolish this right, we would not be warranted in giving the act judicial sanction. Where, by any possible construction of a reasonable nature, legislation can be upheld, it is our duty to give it such a construction as will uphold, rather than destroy, it. The irrigation act of 1895 is valid when construed as not interfering with vested property rights which have been acquired hj riparian proprietors. Such a con- struction, we are satisfied, is justified bj' a fair inter- pretation of the act in its entirety, and considering its tenor, purport, and the object intended to be accom- plished by its enactment." And the court says later in the same case: "The irrigation act of 1889 abrogated i:ti) In Crawford v. Hatliaway (Neb.), 93 X. W. 781, 60 L. R. A. 889. § 21 HISTORICAL REVIEW. 43 in this State the common-law rule of riparian ownership in water, and substitiited in lien thereof the doctrine of prior appropriation. This legislation could not and did not have the ejffect of abolishing riparian rights which had already accrued, but only of preventing the acquisition of such rights in the future. The law of 1895 but continued in force the act of 1889 in so far as that act abrogated the common-law rule as to the rights of riparian proprietors, and since the taking effect of the act of 1889 those acquiring rights to the Avaters flowing in the natural channels of the State are to be tested and determined bj^ the doctrine of prior appropriation." The National Irrigation Act^"^ does not directly affect the law of waters. It aims at tlie ])uilding of irrigation works by national financial and engineering aid under existing State laws concerning waters. The essence of the National Irrigation Act is that the United States as landowner provides for certain engineering projects upon its lands, to be carried out in conformity with State law. Indirectly it has had great influence, in that the irrigation codes of most of the States and Territories above mentioned Avere adoi)ted largely for the purpose of forwarding the work of the Federal government. § 21. Irrigation Districts. — It is not our purpose to discuss the special law concerning irrigation districts, as it has left the general law of waters unchanged, using the latter as a basis, but not interfering with it. We may mention, however, that the California legisla- ture- first took up the matter in 187:2, by passing an act^^^ providing that owners of land susceptible of one mode of irrigation may join for the common purpose, contributing the water rights owned by each or acquir- 131 Given in full in Appendix A. 132 Stats. 1871-7:2, pp. 945-94S. 44 WATER RIGHTS IN THE WESTERN STATES. § 21 iiiti- uew ones in the usual ways. Similar legislation al- ready existed for the formation of "Reclamation Dis- tricts" to reclaim swamp lands.^^" In 1887^^* the stat^ ute well known as the "Wright Act" was passed, an elab- orate statute providing for the formation of irrigation districts.^ '^^ It is the basis of irrigation district legis- lation in other Western States. Much law has grown up around irrigation districts, which it is not our inten- tion to discuss, since it left the law of waters unchanged. The act governing irrigation districts now in force in California was passed in 1897 and has been since amended. The rights of the district to water are no different than those of individuals, the water rights being held in trust for the landowners.^ •^'^ i;5^ Infra J sec. 71. 134 Act of March 7, 1887. 135 See Appendix A. 136 Merchants' Bank v. Escondido Irr. Dist., 144 Cal. 329, 77 Pac. 937. Concerning irrigation districts, reference may be made to the fol- lowing cases (see, also, cases concerning reclamation districts, cited in section 71, infra): Hagar v. Board of Supervisors, 47 Cal. 222 (containing a dictum that the law for the formation of reclamation districts to reclaim swamp land could be applied also to the forma- tion of districts to irrigate lands); Turlock Irr. Dist. v. Williams, 76 Cal. 360, 18 Pac. 379, 2 L. E. A. 92 (upholding the constitu- tionality of the Wriglit Act and the right of an irrigation district to take property on eminent domain); Central Irrigation Dist. v. Do Lappe, 79 Cal. 351, 21 Pac. 82.o (relying on reclamation district cases, and concerning proceedings on organization of district, the inclusion and exclusion of land, and the issuance of bonds); Crall V. Poso Irr. Dist., 87 Cal. 140, 26 Pac. 797 (upholding the consti- tutionality of the Wright Act, and holding irrigation districts to be public corporations, also upholding the constitutionality 6f the confirmatory act whereby the validity of bonds is established); Hoard of Directors v. Tregea, 88 Cal. 334, 26 Pac. 237 (holding the p. 106. 28 § 21 IIISTOHU'AL in-]VTK\V. 45 Statutes for the forinatiou of iiTi«!;ation districts based on the Wright Act of California exist in Colo- Pai-. -7:J, 07."), 14 I.. R. A. 75.j (ajrain discussing and upholding the constitutionality of the Wright Act as legislation for a public purpose, relying on the roclaiuation icarraiito by the attorney general to declare a district illegally organized would not lie, holding it collateral attack upon a decree in rem); Sechrist v. Kialto Irr. Oist., 129 Cal. 640, 62 Pac. 261); Escondido H. S. Dist. v. Escon- dido Seminary, 130 Cal. 128, 62 Pac. 401; People v. Perris Irr. Dist., 132 Cal. 289, 64 Pac. 399, 773 (affirming Linda Vista case); Stimson v. A'llesandro Irr. Dist., 135 Cal. 389, 67 Pac. 496, 1034; Baxter v. Vineland Irr. Dist., 136 Cal. 185, 68 Pac. 601 (concerning levy of assessments); People v. Perris Irr. Dist., 142 Cal. 601, 76 Pac. 381 (affirming Linda Vista case, concerning collateral attack, but va- cating confirmatory decree in direct attack on the ground of fraud) ; Merchants' Bank v. Escondido Trr. Dist., 144 Cal. 329, 77 Pac. 937 (concerning due process of law in the issuance of bonds); Bosko- witz V. Thompson, 144 Cal. 724, 78 Pac. 290 (concerning the levy of assessments); Fallbrook Irr. Dist. v. Bradley, 68 Fed. 948; Miller V. Perris Irr. Dist., 85 Fed. 693; Shepard v. Tulare Irr. Dist., 94 Fed. 1; Herring v. Modesto Irr. Dist., 95 Fed. "05; Thompson v. Perris Irr. Dist., 116 Fed. 769; Perris Irr. Dist. v. Thompson, 116 Fed. 836; People v. Brown Valley Irr. Dist.. 117 Fed. 538; 46 WATEE EIGHTS IX THE WESTEEN STATES. § 22 rado,i=^' Idaho,i2s Kansas,^^" Nebraska/^" Nevada/" Utah,^^2 Waslimg:ton.i^=^ § 22. Statement of the Doctrine of Appropriation. — Be- fore closing; this chapter it might be well to present the summary of general principles given by Judge Haw- ley.^ ^^ While not intended as a complete review of the doctrine, it sets forth fundamental principles that are of frequent application to-day : "Under the principles of prior appropriation, the law is well settled that the right to water flowing in the public streams may be acquired by an actual appropria- tion of the water for a beneficial use ; that, if it is used for irrigation, the appropriator is only entitled to the amount of water that is necessary to irrigate his land by making a reasonable use of the Avater; that the ob- ject had in view at the time of the appropriation and diversion of the water is to be considered in connection with the extent and right of appropriation; that if the Board of Supervisors v. Thompson, 122 Fed. 860; Marra v. San Jacinto Irr. Dist., 131 Fed. 780; Fallbrook Irr. Dist. v. Bradley, 164 U. S. 161, 41 L. ed. 369; Tregea v. Modesto Irr. Dist., 164 U. S. 179, 17 Sup. Ct. Eep. 52, 41 L. ed. 395; Tulare Irr. Dist. v. Shepard, 185 IT. S. 8, 46 L. ed. 773. 137 3 M. A. S., 1905 ed., sec. 2309a et seq. 138 Laws 1899, p. 408; Laws 1903, p. 150. 139 Gen. Stats. 1899, sees. 3575-3598; Gen. Stats. 1901, sec. 3683 et seq. 140 Conip. Stats. 1899, sees. 5511-5574; Comp. Stats. 1903, sec. 6476 et seq.; Cobbey's Ann. Xeb. Stats., sec. 6825 et seq.; Am. Stat. 1905, p. 649. 141 Comp. Laws 1900, sees. 374-423. 142 Eev. Stats, 1898, sec. 1287 et seq. Eepealed, but leaving ex- isting districts: See Stats. 1905, c. 108, sec. 71. 14:{ Ballinger's Code, sees. 4166-4249. 144 Hewitt V. Story, 64 Fed. 510, 12 C. C. A. 250, 30 L. E. A. 265, and repeated by him in Union etc. Min. Co. v. Dangberg (C. C. Nev.), 81 Fed. 73, and again repeated by the learned judge in Eogers v. Pitt, 129 Fed. 9.32. § 22 HISTOHK AL REVIEW. 47 capacity of the lliinie, ditch, canal, or other aciuediict, by means of which the water is conducted, is of greater capacity than is necessary to irrigate the lands of the appropriator, lie will be restricted to the quantity of water needed for the i^urposes of irrigation, for watering his stock, and for domestic use; that the same rule ap- plies to an appropriation made for any other beneficial use or purpose; that no ])ersou can, by virtue of his ap- propriation acMjuire a right to any more water than is necessary for tlie purpose of his appropriation; that, if the water is used for the i)urpose of irrigating lands owned by the appropriator, the right is not confined to the amount of water used at the time the appropriation is made ; that the appropriator is entitled not only to his needs and necessities at that time, but to such other and further amount of water, within the capacity of his ditch, as would be required for the future improvement and ex- tended cultivation of his lands, if the right is otherwise kept up; that the intention of the appropriator, his ob- ject and purpose in nmking the appropriation, his acts and conduct in regard thereto, the quantity and char- acter of land owned by him, his necessities, ability, and surroundings, must be considered by the courts, in connection with the extent of his actual appropriation and use, in determining and defining his rights; that the mere act of commencing the construction of a ditch with the avowed intention of appropriating a given quantity of water from a stream gives no right to the water unless this purpose and intention are carried out by the reasonable, diligent, and intelligent, prosecution of the work to the final completion of the ditch, and diversion of the water to some l)eneficial use; that the rights acquired by the appropriator must l>e exercised with reference to the general condition of the country and the necessities of the communitv, and measured in 48 WATEE EIGHTS IX THK WESTEEX STATES. § 22 its extent by the actual needs of the particular purpose for which the appropriation is made, and not for the ])urpose of obtaining a monopolj^ of the water, so as to l)revent its use for a beneficial purpose by other per- sons ; that the diversion of the water ripens into a valid appropriation only where it is utilized by the appropri- ator for a beneficial use ; that the surplus or waste water of a stream may be appropriated, subject to the rights of prior appropriators, and such an appropriator is en- titled to use all such waters; that, in controversies be- tween prior and subsequent appropriators of water, the question generally is whether the use and enjoyment of the water for the purposes to which the Avater is ap- plied by the prior appropriator, have been in any man- ner impaired by the acts of the subsequent appropri- ator. "These principles are of universal application throughout the States and Territories of the Pacific Coast."!^^ i4r> Citing ceases. 23 NATURE OF THE RIGHT OF APPROPRIATION. 49 CHAPTER II. NATl-IM-: OK TIM-: IHCIIT Ol' Al'lMJOPIJIATIOy. A. KELATIUN TO THE GOVERNMENT. 23. The Fnited States or the State — California system. 24. Appropriation as a grant under this system. 25. The United States or the State — Colorado system. 26. Comments on the Colorado view. 27. Sumiiian*-. B. RELATION TO OTHER APPROPRIATORS. 28. Priority governs. Successive appropriations. Periodical appropriations. Temporary appropriations. No partiality. C. RELATION TO RIPARIAN PROPRIETORS. To subsequent settlers. To prior settlers. Prior settlers who hold the land in fee. Prior settlers before patent. Conclusion. D. CHARACTERISTICS. The right is usufructuary. No property in the ''corpus'' of the water. No property in the channel. The right is exclusive. Independent of ownership or possession of land. Distinguished from right to a ditch. It is real estate. It is conditional. J t is an incorporeal hereditament. Definition. A. KKLATIOX TO TIIK GOVERNMENT. ^ 23. The United States or the State — California System. — In Califoi'uia aii«l the States followiuii- the Califoruia Water Rights— 4 § 29. § 30. s 31. § 32. § 33. s 34. § 35. § 3G. § 37. § 3S. § 39. s 4U. § 41. § 42. 8 43. § 44. 8 4.1. 8 415. § 47. 50 WATER RIGHTS IN THE WESTERN STATES. § 23 doctrine, by "government" is meant the owner of the public lands, to which the doctrine of appropriation ultimately alone applies, and this is usually the United States, as the public lands were and still are chiefly Federal lands. But it may also signify the State where (as in comparatively few cases) title to the public land is in the State instead of in the United States. The principle is firmly settled under the California doctrine that the appropriator usually receives his rights from the United States as landowner of the public lands. The positions of the government as landowner and as lawmaker are kept entirely distinct. By the treaty of Guadalupe Hidalgo the United States, at the time the mind's arrived in California, had succeeded to the Mexican title and was the sole owner of the lands through which the streams wholly flowed, excepting only the few cases where ^lexico had pre- viously made grants of ranches to private persons, which grants the United States respected. These lands were held by the United States, and, since the admis- sion of the State into the Union, are now held (where not reserved or purchased for fortifications, etc.), as are held the lands of private persons, with the exception that they are not taxable, by reason of the contract to that effect. An incident to this sole ownership of the land was the right to the watoi-s flowing through it. This right was the same as that ac(iuired by the United States in its acquisition of any land, whether in Cali- fornia or ^lissouri; namely, the general common law being in force immediately upon the acquisition of Amer-i lean sovereignty at a time before the miners arrived, the right of a sole riparian proprietor. As original and sole riparian proprietor, the United States had unlim- ited right to do with the streams what it chose. It couhl grant the right to the water separate or else it § 23 NATURE OF THE RIGHT OF APPRO PRTATTON. 51 could grant the land and the right to the water to- gether. It chose to do both. But chiefly, in the earlyi days, it granted t\n' right to the water separate, by si- lent acquiescence in the customs of the miners who usu- ally took it that way. All these propositions are elab- orately laid down in Lux v. Ilaggin, 09 Cal. 255, 10 Pac. 674, and it would be impossible to quote the words of the court at lengtli here. These propositions are uni- versally accepted in the States where the California doc- trine is in force. ^ As examples of the way these propositions are stated by the courts, the following must serve. In Lux v. Hag- gin, the court says:^ "Recognizing the United States as the owner of the lands and waters, and as therefore au- thorized to permit the occupation or diversion of the waters as distinct from the lands, the State courts have treated the prior appropriator of watcn* on the public lands of the United States as having a better right than a subsequent appropriator, on the theory that the appro- priation was allowed or licensed Iw the United States. It has never been held that the right to appropriate waters on the public lands of the United States was de- rived directly from the State of California as the owner of innavigable streams and their beds. And since the act of Congress granting or nM-ognizing a property in the waters actually diverted and usefully api)lied on the public lands of the United States, such rights have al- ways been claiiiicd to be deraigned by private persons under the act of Congress, from the recognition ac- corded by the act, or from the ac(iuiescence of the gen- eral government in previous appropriations made with 1 See cases cited, sec. 18, ante: Kinney ou Iriij^ation, sees. 135, 145, 188. The same views will be found in Pomeroy on Riparian Eights and Farnham on Waters, puxstim. 2 69 Cal. 255, nt 339, 10 Pac. G74. 52 WATER RIGHTS TX THE WESTERN STATES. § 24 its presumed sanction and approval." In Cruse v. Mc- C'auley,^ the court says: "In the eastern part of Mon- tana the United States acquired its title to lands by virtue of what is called the ^Louisiana Purchase.' There cannot be one rule as to the right to the flow of water over its lands in Montana and another rule as to its lands in Iowa and Missouri. In these last-named States, there can be no doubt of the rule that the national gov- ernment would be entitled to the water which is an in- cident to its land. x\s the United States then owns the waters which are an incident to its lands, it can dispose of them separate from its lands if it chooses." In Howell V. Johnson:^ "The water in an innavigable stream flowing over the public domain is a part thereof, and the national government can sell or grant the same, or the use thereof, separate from the rest of the estate, under such circumstances as may seem to it proper." § 24. Appropriation as a Grant Under This System. — Un- der this view it is universally recognized that an appro- priation constitutes a grant from the United States to the appropriator, originally implied from the silent ac- (juiescence of the United States, now resting on sections 2339, 2340, Revised Statutes of the United States.-^ In Ortman v. Dixon, cited supra, for example, the court says: "We hold the absolute property in such cases to pass by appropriation as it would by grant." In Smith v. Haw- kins:'' "An appropriator of water under these cireum- ••'. 96 Fed. :i69. 4 89 Fed. 556 (C. C, Mont.), Knowles, .7. 5 Conger v. Weaver, 6 Cal. 548, at 558, 65 Am. Dec. 528; Kidd v. Laird, 15 Cal. 161, 76 Am. Dec. 472; Ortman v. Dixon, 13 Cal. 33; Osgood V. El Dorado Water Co., 56 Cal. 571 ; Lux v. Haggin, 69 Cal. 255, 10 Pac. 674; Smith v. Hawkins, 110 Cal. 122, 42 Pac. 453; and many other cases might be cited if it were not that it is a principle accepted to-day in California without comment. « 110 Cal. 122, 42 Pac. 453. S 24 NATURE OF TIIK I.'KIIIT OF APFHOPHTATTON. 53 stances, and while the hind which he subjects to his necessary uses continues to be a part of the public do- main, is a licensee of Ihe j^cneral };-overnnient ; but when such part of the public domain passes into private own- ership, it is burdened by the easement granted by the United States to the appropriator, who holds his rights against this lan Boise etc. Co. v. Stewart (Idaho), 77 Pae. 2~). 62 WATER RIGHTS IN THE WESTERN STATES. § 26 The difficulty is said to be that some right to the uniisetl water flowino- over the public lands of the United States was originally the property of the United States, and that a State cannot take the property from the United States or interfere with the primary disposal thereof without its consent, and that to take it from a grantee of the United States is a taking of property without due process of law, within the fourteenth amendment. That the original right of the United States before set- tlement of the land must have been that of sole riparian proprietor.2^ rj^^g^^ ^jie United States, having been sole riparian owner before the settlement of the land, no State can, by a declaration of law after settlement, take those rights from the United States or prevent it from giving riparian rights to its grantee, or take them away from its grantee. Thus, in Lux v. Haggin,"® after hold- ing that the right to the water on public lands origi- nally must have belonged to the United States, as to any landowner, as parcel thereof, or an incident thereto, the court says : "But Avhen the State is prohibited from interfering with the primary disposal of the public lands of the United States, there is included a prohibi- tion of any attempt on the part of the State to preclude the United States from transferring to its grantees its full and complete title to the land granted, with all its incidents." In Cruse v. McCauley,^'^ tlie court says: "In the eastern part of Montana the United States ac- quired its title to lands by virtue of what is called the 'Louisiana Purchase." There cannot be one rule as to tlie right to the How of water over its lands in Montana and another rule as to its lands in Iowa and Missouri.'' "If a ])erson receives a patent fioni the United States 27 Ante, sec. 24. 28 69 Cal. 2i35, at :!7M, 10 Pae. 674. 2!) 96 Fe.l. 369. § 26 NATURE OF THE RIGHT OF APPROPRIATION. 63 for land suljjcct only to aocruod water ri^fhts, that is, existing- water rights, and as an incident to or part of this land, there is water flowing over the same or upon the same, he would have all the rights the United States had at that time. I do not think any State law or cus- tom can take away such rights except for some public purpose." And in Benton v. Johncox :'^*' "But how it can be hekl that that which- is an inseparable incident to the ownership of land in the Atlantic States and the Mississijipi A'alley is not such an incident in this as any other of the Pacific States, we are unable to com- prehend." Numerous similar quotations could be made from other States in the list already given of the States following the California doctrine.^^ As a direct answer to this objection, the Wj'oming court has said"^- that the first Wyoming constitution con- tained provisions declaring the waters the property of the State, and rejecting riparian rights. This constitu- tion was ratified by Congress on the admission of Wyom- ing into the Union ; and thereby the United States con- sented to this system. But this cannot cover the point in States having no such constitutional provisions,"^ ^ nor in those where such provisions rest on subsequent amendment or legislation which never had the express ratification of Congress. Another answer relies on sections 2339 and 2340 of the Revised Statutes of the United States (Acts of 1866 and ISTO),-^^ as giving Federal sanction, and waiving the Federal right to object. Under the California doctrine 30 17 Wash. 277. (il .\iii. St. Rep. 912, 79 Pac. 49o, 39 L. R. A. 107. 31 Ante, sec. IS. 32 In Farm etc. Co. v. CaipontcM-, 9 Wyo. lin, S7 Am. St. Rep. 918, 61 Pac. 258, .50 L. R. A. 747. 33 Lux V. Haggin. 69 Cal. 25.". m1 :V')L'. lo Pnc-. (174. 34 A)ite, sees. 10 and 11. 64 WATER EIGHTS IN THP: WESTERN STATES. § 26 these statutes merely confirmed the right to appropriate, but did nothing more, as already discussed. The courts following the Colorado system, however, construe those sections as also negativing all other rights; and as a general s\\eeping permission to the Western States to deal with waters as they saw fit. But the narrower (the California) construction has been applied by the supreme court of the United States. -^^ It may be that the supreme court of the United States if the question comes before it, will hold that these Federal statutes are to be construed differently in different States, ac- cording to ''the local customs, laws, and decisions of courts." In support of this special construction of the Federal statutes for the arid States, the general policy of the Federal government in dealing with its arid lands is usually referred to, the United States having, in deal- ing with specific tracts of arid land, specially encouraged and favored the law of appropriation.^^ Thus in Farm etc. Co. V. Carpenter :^' "If any consent of the general government was prinmrily requisite to the inception of the rule of prior appropriation, that consent is to be found in several enactments by Congress, beginning with the act of July 26, 1866, and including the desert land act of March 3, 1877. Those acts have been too often ([noted and are too well understood to require a restate- ment at this time at the expense of unduly extending this opinion." As in the case just quoted, the reference to these iMMleral statutes is usually made in a general and in- definite way. The court says the construction of those acts is too well understood to require restatement, and yet its reference to them is for a much broader purpose •■sr. Sturr v. Bo.-k, 13.-] U. 8. ^A^, 10 Sup. Ct. -Rep. 350, 3.3 L. ed. 761. .!« See Appendix A. :j7 9 Wyo. 110, 87 Am. St. Rep. 918, 61 Pae. 747, 50 L. R. A. 747. S 26 NATURE OF TIIK WKIIIT OF APPROPRIATION. 65 thau that fur which the (.'aliforuia aud similar courts refer to them. The purpose of the Colorado, Wyouiing, and similar courts seems t(» he as follows: That those sections l)roadly sanctioned a new system. If the local customs, laws and decisions considered waters as owned by the State and ignored riparian rights, then such was the system sanctioned by the Federal government, an' the ()i)iiii<)n), in Giitierres v. Albuquerque etc. Co., 188 U. S. 545, 45 L. ed. 588, indicates, liowever, the position the sui)reme court is likely to take. The case did not involve the rights of riparian proprietors but only the right of a State or Territory to legislate upon the use of waters on the public domain at all. The de- cision of the sui)reine court was to the effect that legis- lation concerning waters was a perfectly valid field for the exercise of the territorial power of legislation so long as it did not go beyond the constitutional limita- tions, and quoted the passage from United States v. Rio Grand(^ Tri-. Co., which we have already given in a pre- ceding note as to what those limitations are. The de- cision did not involve the rights of riparian proprietors, but was devoted to upholding territorial legislation of New Mexico, Avhich gave corporations the right to di- vert surplus waters upon the public domain without in- terfering with existing rights. Counsel for appellant, however, had, in their brief, brought up the question of the relation of ai)propriators to the State or to the United States, (] noting Lux v. Haggin, and in this con- nection the following* passage may be of import-ance. The court said : "The contentions urged upon our notice substantially resolve themselves into two general propositions: First, that the territorial act was invalid, because it assumed to dispose of property of the United States without its consent; and, second, that said statute, in so far, at least, as it authorized the formation of corporations of the character of the complainant, was inconsistent with the legislation of Congress and therefore void. These propositions naturally admit of consideration t^)gether. "The argument in support of the tirst proposition pro- ceeds upon the hypothesis that the waters affected by the statute are public waters, the property, not of the 68 WATEE EIGHTS IN THE WESTEEN STATES. § 27 Territory or of private individuals, but of the United States; that by the statnte private individuals, or cor- porations, for their mere pecuniary profit, are permitted to acquire the unappropriated portion of such public waters, in violation of the right of the United States to control and dispose of its own property wheresoever situated. Assuming that the appellants are entitled to urge the objection referred to, we think, in view of the legislation of Congress on the subject of the appropria- tion of water on the public domain, particularly referred to in the opinion of this court in United States v. TJio Grande Dam and Irr. Co., 174 U. S. 704-706, 43 L. ed. 1142, 1143, 19 Sup. Ct. Rep. 770, the objection is de- void of merit. As stated in the opinion just referred to, by the act of July 26, 1866 (14 Stats, at L. 253, c. 262, sec. 9; Rev. Stats. 2339; U. S. Comp. Stats. 1901, p. 1437), Congress recognized, as respects the public do- main, 'so far as the United States are concerned, the validity of the local customs, laws, and decisions of courts in respect to the appropriation of water.' " § 27. Summary. — The Western States are divided into two classes, one deriving the rights of the appropriator as a grant from the United States and recognizing the common law of riparian rights side by side with the law of appropriation, the other deriving the rights of the appropriator from the State and recognizing no law of waters but that of appropriation. The former, the California system, is in force in California, Oregon, Washington, Montana, North Dakota, South Dakota, Nebraska, Texas and Kansas. {Ante^ sec. 18.) The lat- ter, the Colorado doctrine, is in force in Colorado, Ari- zona, Idaho, New Mexico, Nevada, Utah, and Wyoming. (Ante, sec. 19.) The doctrine of the latter States, if rested solely on the jjrinciple that no other rule is ap- § 27 NATURE OF TFfK KFOHT OF APPROPRIATION. 69 plicable, is <)])('n to const it utiomil objections urged against it by the former States. If rested instead on a broad eonstrnetion of the early Fe(U'ral statutes, it is nuM-ely a matter of h)eal statntory (-(mstruction of an indefinite statute coiKerninL:, local customs, laws, and decisions. These I'ederal statutes, conse^iuently, are not undeserving of the strictures jjassed upon them by the Nevada court, above quoted, since they have left room foi- such fundamentally different constructions. "Had the government of the Ignited States taken as much pains in disposing of the waters of the public do- main in as uniform and systematic a manner as it did of the ])ul)lic lands in the ai'id region, over which those waters run, and the greater i)oi-tion of which lands are absolutely worthless without the a])plicati4 Ante, sec. 9. -.5 87 U. S. 670, 22 L. ed. 452. ■'>« Accord Union etc. Co. v. Dangberg, 81 Fed. 73, quoted outr, sec. 22. § 32 NATURE OF THE RKHIT OF APPROPRIATTOX. 75 difference/'" To the cases cited (nth'"' we may add a quotation from another. Says the court in Wixon y. Bear River etc. Co, :^^ "The four remaining instructions refused l)y the court are founded ui)on the theory that in the mineral districts of this Stute, the right of miners and persons owning ditches constructed for mining pur- poses are paramount to all other rights and interests of a different character regardless of the time or mode of their acquisition; thus annihilating the doctrine of priority in all cases where the contest is between a miner or ditch owner and one who claims the exercise of any other kind of right or ownersliip of any other kind of interest. To such a doctrine we are unable to subscribe, nor do we think it clothed with a plausibility sufficient to justify us in combating it." And so, while a miner, prior to a sawmill, was protected in Conger v. ^^'eaver;*"' on the other hand, the sawmill being prior was protected in Tartar v. Spring Creek etc. Co.,^^ and Ortman v. Dixon.''- In the irrigation codes of the arid States, however, this rule of impartiality is sometimes departed from. These codes sometimes provide that in times of scarcity appropriations for domestic uses shall be supplied first ; for irrigation second; then all other uses last.**^ Such a preference of domestic uses exists also under the com- mon law of riparian rights. •'7 Natoma etc. Co. v. Hancock, 101 Cal. 42, 31 Pac. 112, 35 Pac. 334. ri8 Sec. 9. 50 24 Cal. 367, at 373, 85 Am. Dec. 69. 60 6 Cal. 548, 65 Am. Dec. 528. 61 5 Cal. 395. 62 13 Cal. 33. 03 See infra, sec. 144. 76 WATER RIGHTS IN THE WESTERN STATES. § 33 C. RELATION TO RIPARIAN PROPRIETORS. § 33. To Subsequent Settlers. — The United States hav- ing o-i-anted the right to use the water to appropriators, later settlers take suhjeet thereto, as in any ease of successive grants from a eonnuon grantor. A grant of land from the United States remains suhjeet to prior appropriations of water or prior rights to ditches, as to all otlier prior possessory rights.*'"' In the first case cited in the note, the later grant was hy patent to rail- way lands; in the last, to mining ground. In De Ne- cochea v. Curtis, it was of a hcnnestead. No matter what the character of the later grant, it cannot he de- vested of prior rights of appropriation of water or rights to ditches.^^ In Van Sickle v. Haines,"*' the Nevada court had adopted the contrary view hefore the Federal act of 1870,*''' hut after the statute the rule was settled as above in Nevada as elsewhere.''^ «4 Rev. Stats., U. S., sees. 23'39, 23-10; Broder v. Natoma Water Co., 101 U. S. 274, 25 L. ed. 790; S. C, 50 Cal. 621; Irwin v. Phillips, 5 Cal. 140, 63 Am. Dec. 113; Himes v. Johnson, 61 Cal. 259; South Yuba Water Co. v. Rosa, 80 Cal. 333, 22 Pac. 222; De Necochea v. Curtis, 80 Cal. 397, 20 Pac. 563, 22 Pac. 19S; Burrows v. Burrows, 82 Cal. 564, 23 Pac. 146; Ramelli v. Irish, 96 Cal. 214, 31 Pac. 41; Taylor v. Abbott, 103 Cal. 421, 37 Pac. 408; Faulkner v. Rondoni, 104 Cal. 140, 37 Pac. 883; McGuire v. Brown, 106 Cal. 660, 39 Pac. 1060, 30 L. R. A. 384; Jacob v. Day, 111 Cal. 571, 44 Pac. 243; Senior v. Anderson, 115 Cal. 496, 47 Pac. 454; Williams v. Harter, 121 Cal. 47, 53 Pac. 405; Tuolumne etc. Co. v. Maier, 134 Cal. 583, 66 Pac. 863. I!.-. In general accord, Tynon v. Despain, 22 Colo. 240, 43 Pac. 1039; Pomeroy on Riparian Rights, sec. 25 et seq. See infra, chapter VIII. fiO 7 Nev. 249. 07 Rev. Stats., sec. 2340. <5S Barnes v. Sabron, 10 Nev. 217; Shoemaker v. Hatch, 13 Nev. 261; Hobart, v. Wicks, 15 Nev. 418; Jones v. Adams, 19 Nev. 78, 3 Am. St. Rep. 788, 6 Pac. 442. § 34 NATURE OF THE HKIIIT OF x\PPROPKIATION. 77 So far as the later <>Taiit of laud carries riparian rights at all,''" those rights exist only in the surplus over all prior api)ro[)riatious."" § 34. To Prior Settlers. — Under the California doc- trine, riparian rights attach 1o the land of ]>rior settlers, which appropriations thereafter must not disturb. Ke- turning again to the simple rule of successive grants, the relations between the prior settler and the subse- i '.I hifrti, sec. 34. 7(1 DEPARTMENT OF THE INTERIOR. General Land Office, Washington, D. C, March 21, 1872. Hon. A. A. Sargent, M. C, Washington, D. C. Sir: I have the honor to acknowledge the receipt to-day, by refer- ence from you, of a letter bearing date of the twelfth instant, from George E. Williams, Esq., of Placerville, California, recommending an excepting clause to be inserted in patents issued for lands in the mineral regions, for the protection of rights for the use of water ditches, etc., in which you concur. In response, I would state that this question came before me for consideration several weeks since, and although from an examination of the ninth section of the mining act of July 26th, 1866, and the seventeenth section of the amendatory act of July 9, 1870, I am satis- fied that rights to the use of water for mining, manufacturing, agri- cultural or other purposes, and rights for the construction of ditches and canals, used in connection with such water rights, are fully pro- tected by law; yet, in order that all misapprehension that might exist between the holder or claimant of such right and such patentee might be set at rest, it was determined in all patents hereafter granted in mineral regions of the United States, to insert an additional clause or condition, expressly protecting and reserving such water rights, and making the patent subject thereto, the same as before it was granted. The blank forms for this patent are now being printel, and will bo ready for use in a day or two, pending the receipt of which, the granting of patents in the mineral region for agricultural lands will be temporarily suspended. I am, sir, very respectfully. Your obedient servant. WILLIS DRUMMOND. Commissioner. 78 WATER RIGHTS TX THE WESTERN STATES, § 34 qiient appropriator is that of successive grantees of por- tions of the same thinj>, and the later grant can cover only what was left after the earlier one was made. This is the distinctive feature of wliat'^ is called the California doctrine. In the States following the Colo- rado doctrine'^ riparian rights can never be acquired by anyone"^ rejecting the California doctrine. In California, prior settlers on riparian land, Avhether homesteads, pre-emptions, railway grants or whatever the nature of their holding, have the rights of riparian owners, which later appropriators cannot take away though they go on other and vacant public land to do it. This was the important principle laid down in the lead- ing case of Lux v. Haggin,'^^ affirming Crandall v. Woods,'^^ and affirmed in a long list of cases.'^ The surplus over the prior grant to either will be recog- nized as a valid subject of grant to the other. The surplus in amount of water or in time of use over Avhat has been acquired by prior appropriation Avill attach to the later grants of the land and the grantees will have riparian rights in the surplus; and vice versa ^ the surplus over vested riparian rights may be taken by later appropria- 71 In Willey v. Decker, 11 Wyo. 496, 100 Am. St. Rep. 939, 73 Pac. 210. 72 Ante, sec. 19. 73 Ante, sec. 25. 74 69 Cal, 255 (see page 336), 10 Pac. 674. 75 8 Cal. 136. 76 Among them the following: Van Bibber v. Hilton, 84 Cal. 583, 24 Pac. 308, 598; Alta Land Co. v. Hancock, 85 Cal. 219, 20 Am. St. Rep. 217, 24 Pac. 645; Modoc etc. Co. v. Booth, 102 Cal. 151, 36 Pac. 431; McGuire v. Brown, 106 Cal. 660, 39 Pac. 1060, 30 L. R. A. 384; Hargrave v. Cook, 108 Cal. 72, 41 Pac. 18, 30 L. R. A. 390; Baxter V. Gilbert, 125 Cal. 580, 58 Pac. 129, 374; Bathgate v. Irvine, 126 Cal. 135, 77 Am. St. Rep. 158, 58 Pac. 442; Rice v. Meiners, 136 Cal. 292, 68 Pac. 817; Sturr v. Beck, 133 U. S. 541, 10 Sup. Ct. Rep. 350, 33 L. ed. 761; Kinney on Irrigation, sec. 190 ot seq. See .siiijra, sec. 18. g 34 NATURE OF THE RTOIIT OF APPROPRIATION. 79 tors."^^ It is the duty of the riparian proprietor to re- turn the surplus to the stream for use of appropriators below him.''^ The relation is always that of successive grantees of portions of the right to the same thing, to be deter- mined by priority on one side, and the right to the sur- plus on the other. The following two passages state the rule in California: "Both the right to appropriate water on the public lands and that of the occupant of portions of such lands are derived from the implied consent of the owner, and as between the appropriator of land or water the first possessor has the better right. The two rights stand upon an equal footing, and when they conflict they must be decided by the fact of priority. (Irwin v. Phillips, 5 Cal. 140 ; S. C, 73 Am. Dec. 113.) Since the United States, the owner of the land and water, is presumed to have permitted the appropriation of both the one and the other, as between themselves the prior possessor must prevail.""'* "One who locates upon public lands with a view of appropriating them to his own use, becomes the abso- lute owner thereof as against everyone but the govern- ment, and is entitled to all the privileges and incidents which appertain to the soil, subject to the single excep- tion of rights antecedently acquired The rule, 77 Lux V. Haggin, 69 Cal. 255, 10 Pac. 674; Edgar v. Stevenson, 70 Cal. 286, 11 Pac. 704; Barrows v. Fox, 98 Cal. 63, 32 Pac. 811; Modoc etc. Co. v. Booth, 102 Cal. 151, 36 Pac. 431; Faulkner v. Rondoni, 104 Cal. 140, 37 Pac. 883; Baxter v. Gilbert, 125 Cal. 580, 58 Pac. 129, 374. 78 Stanford v. Felt, 71 Cal. 249, 16 Pac. 900; Gould v. Stafford, 77 Cal. 66, 18 Pac. 879; Silver Creek etc. Co. v. Hayes, 113 Cal. 142, 45 Pac. 191; Bathgate v. Irvine, 126 Cal. 135, 77 Am. St. Eep. 158, 58 Pac. 442. 70 Lux v. Ilaggin, 69 Cal. 255 at 355, 10 Pac. 674. so WATER RIGHTS IN THE WESTERN STATES. S§ 35,36 ^Qtd prior est hi tempore, potior est in jure.' must ap- § 35. Prior Settlers Who Hold the Land in Fee.— All hmd that has passed into private ownei'ship in fee sim- ple is fully within this rule, and protected in its ripa- rian rights against subsequent appropriators, though the appropriator goes on vacant public land to make his appropriation.^^ Usually the land passes into pri- vate ownership by virtue of a patent under the home- stead, pre-emption, or other Federal laws. But the ■fee may have been acquired by virtue of a Mexican grant, made before the United States acquired sover- eignty; and riparian rights fully attach to land whose title is deraigned under a Mexican grant.^- § 36. Prior Settlers Before Patent. — It was at first held that, until patent issues for the land, or at least until full paj'ment, riparian rights are not protected against later appropriation.*^ But that was going too far, and it is now settled that it is enough that the first formal step (filing entry or application in the land office) is sufficient.**^ A valid mining location constitutes the lo- 80 Crandall v. Woods, 8 Cal. 136 at 144. 51 Lux V. Haggin, 69 Cal. 255, 10 Pac. 674, and cases supra. 52 Lux V. Haggin, 69 Cal. 255, 10 Pac. 674; Pope v. Kinman, 54 Cal. 3; Vernon etc. Co. v. Los Angeles, 106 Cal. 237, 39 Pac. 762; Los Angeles v. Pomeroy, 124 Cal. 597, 57 Pac. 585; Pomeroy on Riparian Rights, sec. 42. sa Osgood V. Water Co., 56 Cal. 571; Farley v. Spring "Valley etc. Co., 58 Cal. 142. 84 Sturr V. Beck, 133 U. S. 541, 10 Sup. Ct. Rep. 350, 33 L. ed. 761; Lone Tree etc. Co. v. Cyclone etc. Co., 15 S. Dak. 519, 91 N. W. 352; Cruse V. McCauley, 96 Fed. 369; Conkling v. Pacific etc. Co., 87 Cal. 296, 25 Pac. 399; Shenandoah etc. Co. v. Morgan, 106 Cal. 409, 39 Pac. 802; McGuire v. Brown, ]06 Cal. 660, 39 Pac. 1060, 30 L. R. A. 384; Union M. & M. Co. v. Dangberg, 2 Saw. 450, Fed. Cas. No. 14,370; Long on Irrigation, sec. 30. § 37 NATURE OF THE RIGHT OF APPROPRIATION. 81 cator a rii)iiriaii owucr witliiu this rule; and water tlow- ing through a mining location cannot be appropriated later to the injury of the owner of the mining claim's riparian rights.^'' Mere possession of public land without any ste[)S taken to obtain title would not to-day protect riparian rights. Naked possession of the public lands gives no right against those who peaceably seek to obtain rights under the statutes for that purpose.^^ § 37. Conclusion. — The following conclusions seem to be warranted from the foregoing, as expressing the California doctrine, at least: a. An a])propriation is equivalen t to a grant from th e United State s (or State) as landowner to use T\:at er, and may carry whatever right in the water the United States has to grant, but nothing that the United States was never entitled to or has parted with. b. The relation between successive appropriators is \ that of successive grantees from the same owner; they are independent and priority governs, on the one hand ; on the other, the right to the surplus, not being included in the prior grant, vests by the later one. Each ap- propriator is a prior one as against all who are subse- quent to him, c. The relation between appropriators and riparian ' proprietors is likewise that of successive grantees from a common owner. They are independent and priority governs, on the one hand ; on the other, the right to the 85 Crandall v. Woods, S Cal. 136; Leigh v. Ditch Co., S Cal. Z2?.. See Ponieroy on Riparian Rights, sec. 33 et seq. ^6 Lake v. Tolles, 8 Nev. 285, decided before the common law of riparian rights was rejected in Nevada; Lindley on Mines, sec. 216 et seq.; Kinnej' on Irrigation, sec. 286. See Cal. Pen. Code, sec. 420. Water Rights— 6 82 WATEE EIGHTS IN THE WESTERN STATES. § 38 surplus over the amount needed by the prior riparian | owner or appropriator, not beino- included in the priori o-rant, vests in the later appropriator or riparian owner, | as the ease may be. p. CHAEACTEEISTICS. § 38. The Right is Usufructuary. — Speaking of "quali- fied property'' as opposed to an absolute right of prop- erty, Blackstone says:^^ "Many other things may also be the objects of qualified property. It may subsist in the very elements of fire or light, of air, and of water. A man can have no absolute permanent property in these, as he may in the earth and land ; since these are of a vague and fugitive nature, and therefore can admit only of a precarious and qualified ownership, which lasts so long as they are in actual use and occupation, but no longer. If a man disturbs another', and deprives him of the lawful enjoyment of these; if one obstructs another's ancient windows, corrupts the air of his house or gardens, fouls his water, or unopens and lets it out, or if he diverts an ancient watercourse that used to run to the other's mill or meadow; the law will animadvert hereon as an injury, and protect the party injured in his possession. But the property in them ceases the in- stant they are out of possession; for, wIkmi no man is engaged in their actual occupation, they become again common, and every man has equal right to appropriate- ^^ them to his own use." •s7 Book IF, chapter XXV, p. 395. MS This quotation is jxiven as an explanation of what is meant by a usufructuary rijjht, that feature being common to both the systems of appropriation and riparian rights. The passage quoted and others in Blackstone were at one time further thought to countenance the law of appropriation in England; but that has long since been re- pudiated. See Mason v. Hill, 5 Barn. & Adol. 1, and the note in 43' Am. Dec. 269. See, also, Farnham on Waters, p. 1568. See infra, sec. 207. § 39 NATURE OF THE KICHT OE APPROPRIATION. 83 The riolit resultiiij;- from the <;Taiit to an appropria- tor, from the United States, is likewise only usufruct u- aj.y 89 thouj^h for shortness' sake, the appropriator is spoken of as the owner. ''^ There is no xJi'operty in the water itself nor in the ehannel itself; the right is only to a use and flow. ^ 39. No Property in the "Corpus" of the Water.— Prop- erty in the corpus of the waters is not recognized, so long as flowing naturally,^^ and hence, the appropria- tor cannot sue for the value of water at so much per inch or gallon diverted from the stream to his detri- ment; he must declare for the damage to his enterprise from loss of the use and flow."'- Likewise a sale of the water right does not mean the delivery of any specific quantity of water.^^ Nor can one set up a claim to water after it has been allowed to run off.^-^ When, however, the water has once been severed from its natu- ral waten-ourse, so long as it is in an artificial conduit or watercourse, such as flumes or ditches, it dues be- come the subject of ownership, and, like coal after being mined, is personal property.''"^ sit Hill V. Newman, ;j Cal. 445, 63 Am. Doe. 140; Nevada etc. Co. V. Kidd, 37 Cal. 282, and ca.ses infra. 90 Riverside etc. Co. -v. Gage, 89 Cal. 410, 26 Pae. 889. 91 Inter alia, Kidd v. Laird, 1.5 Cal. 161, 76 Am. Dee. 472; il.- Donald V. Askew, 29 Cal. 200; Los Angeles v. Baldwin, 53 Cal. 469; McGuiro v. Brown, 106 Cal. 660, 39 Pae. 1060, 30 L. R. A. 384; Mf- Keany v. Black, 117 Cal. 587, 49 Pae. 710; Pomeroy on Riparian Rights, sec. 55. 92 Parks etc. v. Hoyt, 57 Cal. 44; Riverside etc. Co. v. Gage, 89 Cal. 410, 418, 26 Pae. 889. 93 Booth v. Chapman, 59 Cal. 149. 94 Eddy V. Simpson, 3 Cal. 249, 58 Am. Dec. 408; infra, sec. 191. Dr- fnfra, sec. 131. 84 WATER EIGHTS IN THE WESTERN STATES. §§ 40,41 § 40. No Property in the Channel. — Property in the channel does not pass to the appropriator, but remains in the United States unless granted as land to others under the homestead or other laws. And consequently, the same channel may be used by several appropriators, as where one man had appropriated water and a later comer above stream added a large volume of water to the channel, and then diverted it again before it reached the former appropriator, thus using the channel as a link in a long ditch line."^ If the appropriator happens also to own the channel by some other source of title, he may sell it without affecting the water right and vice versa.^'^ § 41. The Right is Exclusive. — As opposed to the cor- relative rights of the common law, whereby all on the stream have an equal right, under the law of appropria- tion the rights of the claimants are unequal. Each has an exclusive right to the extent of his prior appropria- tion, and appropriations vary greatly in the extent of right appropriated. Pull protection is given to the prior appropriator against all comers."^ This exclusiA^eness includes a right to the natural flow of the whole stream up to its source, and with its tributaries.-'^ The doctrine of appropriation, however, is founded on the right to disturb the natural order of things. Later changes by others above do not concern tlie appropriator if the flow at his point of diversion is not disturbed by them. An artificial flow can be sub- stituted, it would seem, if it can be done without dam- no Hoffman v. Stone, 7 Cal. 46; Butte Co. v. Vaughn, 11 Cal. 143, 70 Am. Dec. 769. 97 Doyle V. San Diego Co., 46 Fed. 709. 98 Infra, chapter IX, and ante, sec. 28 et scq. !>o Long on Irrigation, sec. 60, cases concorning tributaries collected. i I ' 1] Jl! § 42 NATURE OF TITE RIGHT OF APPROPRIATION. 80 ^g(.,ioo Likewise the surplus may, as we have seen, be diverted by others. Th(Te is no right in the natural flow such as would allow the ditching; back of a stream that had shifted its course naturally ;^*'i nor, if a stream becomes filled with mud and silt, can the appropriator raise his dam higher so as to preserve the natural depth there, if in so doing the rights of others are interfered with, though later in time.^^^ The right is exclusive of use by others such as inter- feres with the use for which appropriated; but it does not include any property in the water itself, nor in the channel itself.^"" § 42. Independent of Ownership or Possession of Land. — The water may be taken from and over and be used on dis- tant lands owned entirely by the government or by other private parties, as was frequently the case with canal companies. This is a distinguishing feature of the law of appropriation. The original case of Irwin v. Phil- lips ^^^ was such a case. Title to land is in no way concerned.^"^ This is now accepted without comment in California. We may also quote the following from Smith V. Denniff:^*^^ "The legal title to the land upon which a water right acquired by appropriation made on 100 Wiggins V. Muscupiabe etc. Co., 113 Cal. 182, 186, 54 Am. St. Rep. 337, 45 Pac. 160, 32 L. R. A. 667. 101 Paige V. Rocky etc. Co., 83 Cal. 84, 21 Pac. 1102, 23 Pac. 875; Wholly V. Cladwell, 108 Cal. 95, 49 Am. St. Rep. 64, 41 Pac. 31, 30 L. R. A. 820. 102 Nevada etc. Co. v. Powell, 34 Cal. 109, 91 Am. Dec. 685. See in general, Pomeroy on Riparian Rights, see. 60. 103 Cf., sec. 29, ante. 104 5 Cal. 140, 63 Am. Dec. 113. 105 Santa Paula etc. Works v. Peralta, 113 Cal. 38, 45 Pac. 168; quoted jwfro, sec. 48. lOG 24 Mont. 20, 81 Am. St. Rep. 408, 60 Pac. 398, 50 L. R. A. 741. 86 WATEE EIGHTS TX THE WESTEBN STATES. § 42 the public domain is used or intended to be used, in no way affects the appropriator's title to the water right." The fact, however, that an appropriator of water for irrigation owns no land to be irrigated, may be given in evidence to show that he was not acting hona fide}^'' The rule under riparian rights is exactly the opposite. This is one of the most striking characteristics of the law of appropriation, conforming to the necessities of mining in the early days in California. But to-day it is sometimes thought unfortunate in its application to irrigation ; and on this account this prime characteristic of the law of appropriation has been departed from by statute in Arizona/ "^^ Nebraska,^"^ Nevada,^ ^° Utah,^^^ and in the recent irrigation codes of Oklahoma (sec. 30), and South Dakota (sees. 31, 47. See Appendix). The appropriation must in those States and Territories become fixed to some land, and is either inseparable from that land or else separable Avith difficulty. If water is furnished by a canal company, the consumer is the appropriator and the canal company only agent. Once attached to the land, moreover, the water right cannot in these States and Territories be thereafter sold separately, except with the approval of the State En- gineer and publication of notice.^ ^^ 107 See inira, sec, 109; Mills v. Butte etc. Co. (Mont.), 79 Pac. 549. In accord with the general principles of this section, Hayes v. Buzard (Mont.), 77 Pac. 423; Johnson v. Little etc. Co. (Wyo.), 79 Pac. 22; Willey v. Decker, 11 Wyo. 496, 100 Am. St. Rep. 939, 73 Pac. 210; Nevada etc. Co. v. Bennett, 30 Or. 59, 60 Am. St. Eep. 777, 45 Pac. 472, and the cases collected in Pomeroy on Eiparian Eights, sees. 46, 92; Kinney on Irrigation, sec. 156; GohUI on Waters, sec. 230; 17 Am. & Eng. Ency. of Law, 497. 108 Gould V. Maricopa etc. Co. (Ariz.), 76 Pac. 598; Slosser v. Salt River Co. (Ariz.), 65 Pac. 332. 109 Farmers' Irr. Dist. v. Frank (Neb.), 100 N. W. 286. no Stats. 1905, p. 66. 111 Stats, 1905, c. 108, sec. 60. 112 Ibid. See Appendix B. §§ 43,44 NATURE OF THE RKIHT OF APPKOPRIATIOX. S7 This view has been urged also in other States as a necessary change in the law of a])i)roi)riation when ap- plied to irrigation, but has been usually rejected. It is rejected in California.^^^ The National Irrigation Con- gress in its Ninth Session held at Chicago, Illinois, No- vember 21-24, 1900, adopted a memorial declaring among other things that the right t(» the use of water for ir- rigation should inhere in the land irrigated. Is this an attempt at a compromise between appropriation and riparian rights? A characteristic of the common law of riparian rights is that the right to use the water is attached to certain lands; a characteristic feature of appropriation is that the appropriation is independent of title to or possession of any lauds. § 43. Distinguished from Right to a Ditch. — The water right is entirely distinct from the right to the ditch in which the water is conveyed. The latter is an easement The former is an incorporeal hereditament sid generis, and not an easement. The water right and ditch right may be conveyed separately, or the one may exist with- out the other. An abandonment of one does not neces- Barily include abandonment of the other. One may, however, be appurtenant to the other. The matter is discussed and cases cited at length later.^^^ § 44. It is Real Estate.— In Hill v. Newman,"^ the court says: "From the policy of our laws it has been held in this State to exist without private ownership of 113 Cases cited supra, and cases collected in 65 L. K. A. 407, note. 114 See in general, Nevada etc. Co. v. Kidd, 37 Cal. 282, 309; Zimmler v. San Luis etc. Co., 57 Cal. 221; McLean v. Hapgood, 85 Cal. 555, 24 Pac. 788; Mayberry v. Alhambra etc. Co., 125 Cal. 444, 54 Pac. 530, 58 Pac. 68; Pomeroy on Riparian Rights, sec. 57. See infra, sec. 129 et seq. iir. 5 Cal. 445, 63 Am. Dec. 14ft. 88 WATER RIGHTS IN THE WESTERN STATES. § 45 the soil, upon the groimd of prior location upon the land, or prior appropriation and use of the water. The right to water must be treated in this State as it has al- ways been treated, .... as a corporeal privilege be- stowed upon the occupier or appurtenant to the soil; and as such has none of the characteristics of mere per- sonalty." The court held that a justice of the peace has no jurisdiction over an action for diversion of water be- cause it was an action concerning title to real estate.^ ^® The statute of frauds, concerning conveyances of real estate, applies to it;^^' the statute of limitations con- cerning land applied to it.^^^ So do the recording stat- utes, as between successive conveyances.^ ^'^ That it is in the nature of re-al estate is fully recognized.^^'' § 45. It is Conditional. — This is a feature in common with all possessory rights on the public domain. In the early days the possessor disclaimed any right in the pub- lic land itself; he insisted only on the right to go upon it and carry on his enterprises there. The license or permission given by the tacit consent of the United States was the thing emphasized; a license personal in its nature. And while possessory rights have acquired the dignity of real estate to-day, they retain also the 116 A somewhat similar decision appears in Pacific etc. Club v. Sausalito etc. Co., 98 Cal, 487, 33 Pae. 322. 117 Griseza v. Terwilliger, 144 Cal. 456, 77 Pac. 1034; Smith v. O'Hara, 43 Cal. 371; Oneto v. Restano, 78 Cal. 374, 20 Pac. 743; Dorris V. Sullivan, 90 Cal. 279, 27 Pac. 216; Hayes v. Fine, 91 Cal. 391, 27 Pac. 772. 118 Yankee Jim etc. Co. v. Crary, 25 Cal. 504, 85 Am. Dec. 145, and see infra, sec. 194 et seq. 119 Partridge v. McKinney, 10 Cal. 181; Lyles v. Perrin, 119 Cal. 264, 51 Pac. 332. 120 See, also, Fudickar v. Irrigation Dist., 109 Cal. 29, 41 Pac. 1024; Santa Paula etc. Co. v. Peralta, 113 Cal. 38, 45 Pac. 168; South Tule etc. Co. v. King, 144 Cal. 450, 454, 77 Pac. 1032; Talcott v. Mastin (Colo.), 79 Pac. 973. §§ 46,47 NATTJKE OF THK RICTFT OK APPROPKIATION. 89 impress of their origin. A water right of appropria- tion is spoken of as a privilege, license or franchise. ^^i This franchise is conditioned on beneficial use of the water; a faihire of this condition causes a loss of the right.^22 § 46, It is an Incorporeal Hereditament. — It is not land.^23 i^ jj^ not, subordinate to any laud, but inde- pendent thereof and of equal dignity therewith, and hence not an easement.^24 often it is called an ease- ment ;^25 ij^^^ j^ [^ submitted that such is not the better view.^2^ In Hill V. Newman,^ 2^ quoted in a preceding section, it is called a corporeal hereditament but this is criticised by Yale.^^^ It was held to be incorporeal in Swift v. Goodrichj^^** deciding consequently that contracts con- cerning water rights cannot create the relation of land- lord and tenant, as, being incorporeal, no tenancy can exist therein. § 47. Definition. — From these characteristics, the fol- lowing definition, it is suggested, may be deduced : A water right of appropriation is an interest estate independent of the ditch for carrying the in real \ water, I 121 E. g., Conger v. Weaver, 6 Gal. 548, 558; Mitchell v. Amador Canal etc. Co., 75 Cal. 464, 483, 17 Pac. 246; Natoma etc. Water Co. v. Hancock, 101 Cal. 42, 31 Pac. 112, 35 Pac. 334. 122 Infra, sec. 123; and chapter XII. 123 Mt. Carmel Fruit Co. v. Webster, 140 Cal. 183, 73 Pac. 826. 124 Yale on Mininjr Claims and Water Rights, 204, 215; and cases cited infra. 125 E. g.. Smith V. Hawkins, 110 Cal. 122, 42 Pac. 453; Smith v. Deniff, 24 Mont. 20, 81 Am. St. Rep. 408, 60 Pac. 398, 50 L. E. A. 741. 12G See, also. Lux v. Haggin, 69 Cal. 255, 293. 10 Pae. 674. 127 5 Cal. 445, 63 Am. Dec. 140. 128 Pages 204, 215. 129 70 Cal. 103, 11 Pac. 561. 90 WATER EIGHTS IN THE WESTERN STATES. § 47 and independent of ownership or possession of any land, whereby the appropriator is granted by the government the exclusive use of the water anywhere so long as he applies it to a beneficial purpose; and it is an incor- poreal hereditament, solely usufructuary, not conferring ownership in the corpus of the water or in the channel of the stream. § 48 WHO CAN APPROPKIATE. 91 CHAPTER III. WHO CAX APPROPEIATE. § 48. Persons in general. § 49. Tenants in common. § 50. Riparian owners. § 51. Corporations. § 48. Persons in General. — There is no restriction re- specting the persons who can appropriate. "The silent acquiescence with which the government, prior to the act of Congress of July 20, 1866, regarded the appropriation of water on its lands, as well as the express recognition extended by that statute to rights so acquired, did not discriminate between Trojan and Tyrian — citizens or aliens; married women and minors were, in general, not competent to pre-empt land, but we have never heard that they might not make a valid appropriation of water ; the tests of such appropriation were priority of possession and beneficial use (Maeris V. Bicknell, 7 Cal. 261, 68 Am. Dec. 257 ; Davis v. Gale, 32 Cal. 26, 91 Am. Dec. 554 ; De Necochea v. Curtis, 80 Cal. 307) ; and title, or the right to acquire title, in the place of intended use has never been a necessary element in the ownership of a])propriated water. Besides, since the prior appropriation of water is a mode of acquiring a right in real property by purchase (Hill v. Newman, 5 Cal. 445, 63 Am. Dec. 140)— the alienage of the defend- ant was a matter between liim and tlie government, and, if it were admitted that as against the government, he could have no valid right in the water, yet until 'office found,' it is conceived that private individuals were not at liberty to treat his appropriation as void of effect, or 92 WATER RIGHTS IX THE \YESTERN STATES. §§ 4f), ."iO the water itself as still open to another to take. (Norris V. Hoyt, 18 Cal. 217 ; Raeouillat v. Sansevain, 32 Cal. 376 ; Lobdell Y. Hall, 3 Nev. 516.)" In the case from whicli this is quotecV an appropriation by an alien was held good.- A lessee of land may be an appropriator of water for irrigating that land.^ § 49. Tenants in Common. — Where several join in mak- ing an appropriation they will usually be tenants in common of the water right.^ There is this peculiarity arising out of such a tenure, that the water right is held not to be in its nature subject to actual partition ; and on a partition suit the only separation of the in- terests of the tenants in common that can be made is by ordering a sale and a division of the proceeds.^ § 50. Riparian Owners. — Before the common-law rights of riparian proprietors were established under the Cali- fornia doctrine, cases involving riparian owners were frequently rested on actual appropriations made by them ; there was no attempt made to restrict their right to be appropriators.^ And in States where riparian rights are not recognized, the only way a riparian owner 1 Santa Paula Water Works v. Peralta, 113 Cal. 38, 43, 45 Pac. 168. 2 Accord Lobdell v. Hall, 3 Nev. 507, upholding an appropriation by an Indian. In general accord, Long on Irrigation, sec. 35; Kinney on Irrigation, sees. 154, 155. 3 Sayre v. Johnson (Mont.), 81 Pac. 389. 4 Abel V. Love, 17 Cal. 233; Bradley v. Harkness, 26 Cal. 69; Lytle Creek etc. Co. v. Per dew, 65 Cal. 447, 4 Pac. 426; Frey v. Lowden, 70 Cal. 550, 11 Pac. 838; and see Civ. Code, Cal., sec. 842. 5 McGillivray v. Evans, 27 Cal. 92; Lorenz v. Jacobs, 59 Cal. 262. See, also, infra, sec. 165. Accord Long on Irrigation, sec. 75. 6 E. g., Anaheim etc. Co. v. Semi-Tropic etc. Co., 64 Cal. 185, 30 Pac. 623; Wilcox v. Hausch, 64 Cal. 641, 3 Pac. 108. § 50 WHO CAN Al'i'HOPRIATE. 93 can lict a water supply is by an appropriation." But when riparitn rights reappeared in the front in Califor- nia, the question arose whether the owner of those rights was excluded from getting additional rights by appro- priation on the same or on a different stream. Trouble has arisen over another question; that is, whether an ajipropriation can be made on the riparian land itself — a different question, which must be dis- tinguished from this, and will be considered later.^ Being made on other and public land it is settled in California that there is nothing in the character of a riparian owner that excludes him from making an ap- propriation on public land, like anyone else. The two rights may exist together, and are not necessarily in- consistent, and need not merge. This was firmly laid down in Healy v. Woodruff, 97 Cal. 464, 32 Pac. 528, and approved (on this point) in Cave v. Tyler, 133 Cal. 566, 65 Pac. 1089. In Healy v. Woodruff, the riparian proprietor appropriated extra water from the same stream on public land.*^ In Smith v. Hawkins^" the court reached the same r(^sult where the appropriator l)ought up additional riparian rights.^ ^ In Van Bibber V. Hilton, 84 Cal. 585, 24 Pac. 308, 598, all the parties to the action were riparian proprietors and the defend- ants were also appropriators. The trial court limited the right of the latter to the amount claimed as appro- priators. Judgment was reversed by the supreme court for not also making some allowance as riparian right. The decision in Senior v. Anderson^- is a necessary 7 E. g., Jerrett v. Mahaii. 20 Nov. 89. 17 Pac. 12. Sec Farnham on Waters, sec. 60. ■s See. oG et seq., iiifni. 9 See quotation from this case infra, see. 57. Accord Kaler v. Campbell, 13 Or. 596, 11 Pae. 301. 10 127 Cal. 119, 59 Pac. 295. 11 And see Edgar v. Stevenson. 70 Cal. 286, 11 Pae. 704. 12 130 Cal. 290. 296, 62 Pae. 563. 94 WATEE EIGHTS IN THE WESTEEN STATES. § 51 corollary to this. In that case an appropriation had been made of all the water reasonably needed for use on certain riparian land, and the appropriator later purchased the land from the United States. No ad- ditional water could be taken by him, it was held; he acquired none additional as riparian right. The deci- sion rests on the finding that he had all he could reason- ably use already, and to give him more would be to waste it, and waste is allowed under neither rule.^^ Had there been use for additional water, there is nothing in the case that would have prevented his taking it as a riparian owner, though he w^as already an appropriator. The combined right may exist, so long as there is no re- sulting waste.^'* § 51. Corporations. — A corporation may well appro- priate water, and corporations frequently do.^"^ It has, however, no advantage over a natural person. The gen- eral rule is that no partiality is shown to any class of appropriators.i^ Those engaged in supplying cities and towns with Avater are the subject of special provision in the various States.^' They are considered in public ser- vice, like common carriers.^* Water may be appro- priated by irrigation districts, under the Wright Act, or they may acquire the right previously existing in the members. They have not, however, any advantage over 1 3 Accord Low v. Seliaflfor, 24 Or. 239, 33 Pac. 678. 14 Accord Farnham on Waters, seo. 660; Kinney on Irrigation, sees. 281, 282; criticising Pomeroy on Eiparian Eights, sec. 133, which was contra. 15 Eu g., Montecito etc, v. Santa Barbara, 144 Cal. 578, 77 Pac. 1113; Heyneman v. Blake, 19 Cal. 579; North etc. Co. v. Orient etc. Co., 1 Fed. 522, 6 Saw. 299. ic See Long on Irrigation, see. 126. 17 See Appendix. 18 See Gould v. Maricopa etc. Co. (Ariz.), 76 Pac. 598; Crescent Canal Co. v. Montgomery, 143 Cal. 248, 76 Pac. 1032. § 51 WHO CAN APPKOPRIATE. 95 individual appropriators and must respect existing rights.^^ Tlic rights of municipal corporations are worked out on the same basis as those of private individ- uals. A cit.v cannot interfere with private appropria- tors merely because it is a city.^** Some cities have suc- ceeded to the old rights of Mexican pueblos, notably Los Angeles, but this right attaches to few cities.^^ True riparian rights or appropriations may vest in cities; but under the same conditions as individuals.^^ A corporation organized under the laws of a Territory may be an appropriator, as well as one organized under the laws of a State.-^ 19 See ante, sec. 21. 20 Santa Barbara v. Gould, 143 Cal. 421, 77 Pac. 151. 21 Ante, see. 2. 22 See Suisun v. De Frietas, 142 Cal. 350, 75 Pae. 1092; Crescent V. Montgomery, 143 Cal. 248, 76 Pac. 1032; Santa Barbara v. Goul.l, 143 Cal. 421, 77 Pac. 151. See Cal. Stats. 1891, p. 102; Oregon Stats. 1905, p. 77. 23 Gutieri'cs v. AlViuquorqoe etc. Co., 188 U. S. 555. 96 WATER EIGHTS IN THE WESTEEN STATES. § 52 CHAPTER IV. WHERE AX APPEOPEIATIOX CAX BE MADE. A. ON PUBLIC LAND. § 52. The first appropriations were all ou public land. § 53. Revised Statutes of the United States. § 54. State lands. § 55. Presumption that lands are public. B. ON PEIVATE LAND. § 56. In general, not allowed. § 57. Healy v. Woodruff. § 58. Cave v. Tyler. § 59. Hostile appropriation. § 60. With consent of the landowner. § 61. By the landowner himself. § 62. Review of decisions. C. RECAPITULATION. § 63. Principles stated. A. ON PUBLIC LAND. § 52. The First Appropriations Were All on Public Lands. When the miners arrived in California, but little of the lands composing the State had passed into private hands. When the mines were located and the early customs established, title to the land had passed to the United States by treaty, from Mexico. The license from the United States to appropriate the water was first presumed from acquiescence therein.^ It is now ex- pressly granted by sections 2339 and 2340 of the Re- vised Statutes of the United States .^ "For a long period fhe general government stood silently by and allowed its 1 Ante, chapter I. 2 Ante, sec. 24. § 53 WHERE AX APPROPRIATIOX CAN BE MADE. 97 citizens to occupy a great part of its public domain in California, and to locate and hold mining claims, water rights, etc., according to such rules as could be made ap- plicable to the peculiar situation; and when there were contests between hostile clainumts, the courts were com- pelled to decide them without reference to the owner- ship of the g()vernment, as it was not urged or pre- sented. In this way — from 1849 to 186G — a system had grown up under which the rights of locators on the public domain, as between themselves, were determined, which left out of view the paramount title of the gov- ernment. The acts of 1866 and 1870 were intended merely to expressly recognize and ratify this system."^ It is usually assumed that the appropriator always seeks to make an appropriation on public lands only. No question is any longer raised to his right to do so. 5< 53. Revised Statutes of the United States. — The pro- visions of the statutes of 1866 and 1870 referred to are those now incorporated in sections 2339 and 2310, Re- vised Statutes, and are as follows : Revised Statutes, section 2339 : "Whenever, by prior- ity of possession, rights to the use of water for mining, agricultural, manufacturing, or other purposes, have vested and accrued, and the same are recognized and ac- knowledged by the local customs, laws, and the decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same; and the right of way for the construction of ditches and canals for the purposes herein specified is acknowledged and confirmed; but whenever any person, in the con- struction of any ditch or canal, injures or damages the 3 Cave V. Tyler, 133 Cal. 566, 65 Pac. 1089; similarly, Broder v. Natoma Water Co., 101 U. S. 274, 25 L. ed. 790; Osgood v. Eldorado Water Co., 56 Cal, 571. Water Rights— 7 98 WATER RIGHTS TN THE WESTERN STATES. §§ 54, ao possession of any settler on the public domain, the party conimittino- such injury- or damage, shall be liable to the party injured for such injury or damages." Revised Statutes, section 2340 : "All patents granted, or pre-emption or homesteads allowed, shall be subject to any vested and acrued water rights, or rights to ditches and reservoirs used in connection with such water rights, as may have been acquired under or recog- nized by the preceding section." § 54. State Lands. — Of certain lands the State is the owner and the State has likewise made the law of ap- propriation apply to them in California,^ In Montana, under similar statutes, the law has been declared to be the same." Similar statutory provisions exist in most of the other States. (See Appendix.) Swamp lands, an important class of State lands, are dealt with by special statutes.*^ § 55. Presumption that Lands are Public. — Formerly this preponderance of public lauds in fact gave rise to a presumption of law that lands were public, and the party claiming that the lands in suit Avere private had the burden of proof. "^ But there is no such presumption to-day for an ap- propriator to rely on.*^ To-day the larger part of the 4 Civ. Code, sees. 1410-1422; Lux v. Haggin, 69 Cal. 255, 10 Pac. 674; affirmed in Wood v. Etiwanda etc. Co., 122 Cal. 152, 158, 54 Pac. 726; Pomeroy on Riparian Rights, sec. 29. 5 Smith V. Dennitf, 24 Mont. 20, 81 Am. St. Rep. 408, 60 Pac. 398, 50 L. R. A. 741. 6 Infra, sec. 71. 7 Burdge v. Smith, 14 Cal. 380; Smith v. Doe, 15 Cal. 100. See Pomeroy on Riparian Rights, sec. 93. 8 Santa Cruz v. Enright, 95 Cal. 105, 30 Pac. 197; Cave v. Tyler, 133 Cal. 566, 65 Pao. 1089. But see Natoma etc. Co. v. Hancock, 101 Cal. 42, 53, 31 Pac. 112, 35 Pac. 334. § 5(3 WIIKI^E AX APPKOPKJATIOX CAN BE MADE. 99 lands ill raliforiiia anrl much of the land in other States is no lon«;('i' public, hut lias passed into private hands.'' Such lands, how cxcr, as are privately held under posses- sory ri<>hts sucli as unpatented minin|i' locations, or con- ditional railway urants, may be forfeited or abandoned; they then aj;aiu become part of the public domain, as vacant public land, and appropriations of water may be made thereon.^'' B. OX PRIVATE LAND. § 56. In General not Allowed. — Most of the land in California and much of the land in other States has to- day passed into private ownership. The questions how far an appropriation of water may be made thereon is of much importance. In the early days, when the land was all public, the question was not mooted and it was assumed that all appropriations were made and could be made on public land only. Such is the general rule to-day. The following is a discussion of the possibility of exceptions to the general rule. The question is complicated under the (California doc- trine by the fact that such land has already riparian rights; and the notion obtains (as mentioned in Healy V. Woodruff),^ ^ that any rights of appropriation would be mergwl therein. The matter presents no such difficulty under the decisions. The ownership of riparian rights is not the test, and no difficulty arises where the owner thereof goes on the public land to make his appropria- tion; the two rights are not necessarily inconsistent and » It is usually said that no appropriation may be made thereon. Infra, sec. 56 et seq. 10 San Jose W. Co. v. San Jose Land Co., 189 U. S. 177, 23 Sup. Ct. Rep. 487, 47 L. ed. 765; San Dinios ete. Co. v. Saii Jose etc. Co., 142 Cal. 583, 76 Pae. 1128. 11 97 Cal. 464. 32 Pac. 528. 100 WATER EIGHTS IN THE WESTERN STATES. § 57 may be held b}' the same person/ ^ so long as the com- bined right does not result in wastefulness.^^ The dif- ficulty does not arise out of a merger of rights, but out of the fact that an appropriation is a grant from the gov- ernment, and how can the government make a grant to anyone on land it does not own? There have been two expressions by the California court upon the matter that are opposite in principle though the decisions are reconcilable on the facts. Both opinions were written by the same judge.^^ § 57. Healy v. Woodruff. — In Healy v. Woodruff,^ '^ an owner of a water right on public land later bought up part of the lower riparian land through which the stream flowed. Thereafter he sought more water as an appropriator by enlarging, on public land, the ditch through which the original appropriation had been made. Complaint was made by subsequent claimants. The court says: "The fact that plaintiff or his grantor was a riparian owner does not warrant the conclusion that he could not be an appropriator — there is, as is said in a play, 'no consonancy in the sequel.' The notion seems to be, that becoming a riparian owner estops one in some sort of a way, from being an appropriator of water, although there be no one in existence in whose favor the estoppel can be evoked Counsel for respondents seems to think that because plaintiff's grantor as a riparian owner could have prevented subsequent appropriators from diverting the water above his land and away from 12 Healy v. Woodruff, 97 Cal. 466, 32 Pac. 528; affirmed on this point in Cave v. Tyler, 133 Cal. 566, 65 Pac. 1089. 13 Senior v. Anderson, 130 Cal. 290, 62 Pac. 563. See ante, sec. 50. 14 Mr. Justice McFarland. 1 15 97 Cal. 464, 32 Pac. 529. § 58 WHEEE AN APPROPRIATION CAN BE MADE. 101 it, therefore he could not divert the water himself; l)ut that is a confusion of the distinction between me urn and tuum. Counsel complain that this view gives great ad- vantage to the first possessor and appropriator of the water of a stream. This is no doubt true, l)ut it is the advantage wliicli the law gives, and which necessarily follows prior occupancy and appropriation." It will be noticed that the additional diversion was made on public land; the court, however, considers riparian ownership of no importance, and the principles announced would have upheld an additional appropria- tion on his own land, so long as the water came from public land, and no existing clainmnts were interfered with , disregarding the fact of private ownership, and remaining firm in the simple rule of priority. § 58. Cave v. Tyler. — On tlie other hand, in Cave v. Tyler,^*^ an appropriation was made in 1(S53, on ju'lvate land, while the stream above flowed entirely tlirough public land. Defendant later ac(]uired title to the upi)er land and interfered with the water. The court says: "By the congressional acts above noted, the govern- ment merely said that whenever it had acquiesced in as- serted possessory rights on the public domain, which were upheld by local customs and laws and decisions of the courts, as between the possessors themselves, it would treat those possessors as though they had ac- quired prescriptive rights against the government, and would recognize such rights whenever afterward grant- ing patents to any part of its land. When a person went upon the public domain and there diverted the water of a stream running thereon, he invaded the rights of the government to its own land, and the gov- ernment could either resist the invasion or acquiesce 16 133 Cal. 566, 65 Pac. 1089. 102 WATER RIGHTS IN THE WESTERN STATES. § 58 in it. If it adopted the latter course, then the kind of vested and accrued right orew up which the oovernment by the said acts of Congress promised to protect. But when a party on private land, to which the government had no title, diverts water from a stream what vested rights does he acquire in the water in the upper part of the stream, where it flows through the government land? Such diversion does not interfere in any way with the flow of the stream in the land of the upper proprietor ; it does him no injury; it is no invasion of his right; it gives him no cause of action ; it leaves no field for the play of consent or acquiescence; it never ripens into title by prescription. "Under what local custom or law, under what 'de- cisions of the courts,' was there a 'vested and accrued' right of respondents to all the water of the stream, up through the public domain to its head, thus depriving a large section of country above of its source of fertility? We know of none. In all of the cases to which we have referred, the diversion was upon the public domain. It may be av(^11 to say— although the case is not referred to in the briefs — that there is nothing in Healy v. AVood- ruff, 97 Cal. 404, at all conflicting with the views above expressed. It was merely held there that the plaintiff was not prevented from enlarging his ditch by the fact that since its original ccmstruction he had obtained title from the goAernment to 'a piece of land through a small portion of which the said Cedar creek (the stream di- verted) runs.' There was no contention that the diver- sion and the ditch were not on the public domain." This case appears to be a flat decision that no ap- propriation can be made on any private bind Axhatc^ver under any circumstances. In discussing the matter, the question may be con- sidered in three parts: ((/) Where the appropriation §§ .'9, 60 WHERP: an appropriation can be made. 103 R()iij:^ht is liostile to the private owner of the hind on which souoint ^^as im- material. In the latter (Cave v. Tyler) the court did go into the matter, as shown in the ])assage (juoted above, and 26 97 Cal. 4(54, 32 Pac. 528. f^upiti, see. 57. 27 Supra, sec. 15. In the cases cited in Farnham on "Waters, sees. 2043 and 2051, this view also finds support. 28 Such is the point of view of Ponierov on Riparian Rights, chapter TIT (see sec. 43). 108 WATEK EIGHTS IN THE WESTERN STATES. § 62 the language used is entirely opposed to any right to appropriate water on private land under any circum- stances. But the argument, as seen in the passage quoted, bases the right of appropriation on an analogy to adverse use or prescription and is hence opposed to accepted fundamental principles. We have already shown the established doctrine that an appropriation is, by virtue of Revised Statutes of the United States, sec- tions 2339 and 2340, equivalent to an express grant ;-^ and it will be seen from the rules composing the system as a whole (to be set forth hereafter) that an appropria- tion in no way depends for its creation or terms upon the requisites necessary to raise the implied grant of the common-law prescription. That an appropriation is not based on an analogy to prescription was declared expressly in Smith v. Haw- kins, saying :^^ "An appropriator of water under these circumstances, and while the land which he subjects to his necessary uses continues to be part of the public domain, is a li- censee of the general government ; but when such part of the public domain passes into private ownership it is burdened by the easement granted by the United States to the appropriator, who holds his rights against this land under an express grant. In this essential respect, that is to say, in the origin of the title under which the servient tenement is subjected to the use, one holding water rights by such appropriation differs from one Asho holds water rights by prescription. "The differences are twofold. A prescriptive right could not be acquired against tlie United States, and can be acquired only by one claimant against another private individual. Again, such an appropriation, to 29 Ante, sec. 24. 30 no Cal. ]22, 42 Par. 453. § 62 WHERE AN APPROPRIATION CAN BE MADE. 109 perfect the rights of the appropriator, does not neces- sitate use for any given length of time, while time and adverse use are essential elements to the perfection of a prescriptive right." The argument in Cave v. Tyler rests on the false as- sumption that would substitute the tests of common- law prescription in the place of the simple rule of prior- ity. Even if the principles on which Cave v. Tyler rests were correct, they would not support the conclusion that no appropriation could in any case be made on private land. The reasoning would apply to public and private land alike, and leave no distinction between the two, since the question of invasion of actual use of water is one of physical fact, independent of the ab- stract notion of title to land. There would be the same result whether the appropriation were made on land that is private or public. The reasoning would prove that no appropriation could be made against use above, where the natural flow is not invaded, whether on land that is public or private; it would likewise prove that it could well be made as against use below where the use in fact is invaded, whether the land be public or not; and would support an appropriation on private lands against later comers below. The distinction between public and private lands contended for by the case, by no means follows from the reasoning; and the conclusions that do follow from the reasoning, applying the principles of adverse use, and distinguishing appropriators above and below, are contrary to the established simple rule of priority. That the argument in Cave v. Tyler is based on a wrong view of the doctrine of appropriation is shown by the query, "Under what local custom or law, under what ^decisions of the courts,' was there 'a vested and 110 WATER RIGHTS IX THE WESTERN STATES. § 62 accrued' right of respondents to all the water of the stream, up through the public domain to its head, thus depriving a large section of country above of its source of fertility?" It may be noted that this is an exaggera- tion, since a use above could well be made by later comers of the surplus, or of the whole if returned to the stream without damage to the prior appropriation, as in the many and frequent cases of successive appro- priation, a question long since answered satisfactorily. But aside from this, the law of appropriation is based on the right to do that very thing in a case of priority.^^ Like the Santa Cruz case, supra. Cave v. Tyler may be supported on its facts. There was evidence that the point of diversion was on land held under a Mexican grant, with which plaintiff did not connect himself. His claim was a broad one of adverse use as well as of appropriation. From this failure to connect himself with the private owner of the land, and these broad claims to adverse use, together with the fact that he made no claim as riparian proprietor, it may be inferred that the appropriator was seeking to maintain a right of appropriation initiated by a trespass upon private property, his claim by adverse use having failed; and, of course, this cannot be done.^^ The broad principle asserted in Cave v. Tyler is op- posed to the result reached in other jurisdictions, as the following passages show : In Washing-ton :^^ "The fact appearing that respondent first diverted water 31 See especially, Pomeroy on Riparian Rights, sec. 92. .•{2 t^npra, sec. 58. A reference to the Supreme Court Records, vol- ume 2178, page 1, shows that this point, upon which the court so strongly relied, was raised only in the reply brief, and only in a very short paragraph (page 137), showing that counsel regarded it as un- important. 33 Offield V. Ish, 21 Wash. 277, 57 Pac. 809. § 63 WHEEE AN APPROPKI ATTON CAN BE MADE. Ill from the stream where it ran thr<)ii<;li his own premises does not militate aj>ainst his appropriation." In Mon- tana :^^ ''Now, being the owner of ri])arian land he can, as has been shown, legally exercise this i)rivilefie on his own land; and, when he has perfected such inchoate right by fnlfillino the requirements of the statute, the legal title to sucli water rights becomes vested in him, . . . . by reason of statutory grant.'" In Oregon : = ' "The right of prior appropriation is limited to the use of water by the pioneer settler before any adverse claims of riparian pro])rietor'S attach to the stream from whicli the water is taken, and not to the point of diversion, which may be either within or beyond the boundaries of the tracts selected by such settler." Adding that to make him go above his boundary to divert might be so expensive as to be prohibitive and so retard settlement. In all of these jurisdictions the combined system of ap- propriation and riparian rights is in force as in Califor- nia. C. EECAPITULATION. § 63. The following principles would seem to follow in all jurisdictions: a. An appropriation can be made on public lands, wherever it is possible to do so without interfering with prioi* appropriations, or, under the California doctrine, with the riparian rights of prior occupants. h. An appropriation cannot be made on private land hostile to the owner thereof. Consequently it is a gen- eral rule that an appropriation cannot be made on pri- vate land. o. An appropriation can be made on private land with | the consent of the owner thereof or by the owner him- 34 Smith V. Denniff, 24 Mont. 20, 81 Am. St. Rej). 40S, 60 Pac. 39^. 50 L. E. A. 741. 3r, Brown v. Baker, 39 Or. 66, 65 Pac. 799. 112 WATEE EIGHTS IX THE WESTEEN STATES. § 63 self, subject to the same conditions as on public land; ! viz., wherever it is possible to do so without interfering with prior appropriations or, under the California doc- trine, with the riparian rights of prior occupants. The field where this is possible is becoming smaller and smaller, and it is hence an exception to the general rule; but is still open in some places, and the cases op- posing this view are distinguishable. § 64 WHAT CAN BE APPEOPRIATED. 113 CHAPTER V. WHAT CAN BE APPROPEIATED. A. SURFACE WATER. § 64. Water in a surface watercourse. § 65. What constitutes a watercourse. § 66. Navigable streams. § 67. Interstate streams. § 68. Artificial watercourses. § 69. Diffused surface w^ater. § 70. Lakes and ponds. § 71. Swamp lands. B. UNDERGROUND WATER. § 72. In general. § 73. Definite underground streams. § 74. The sub-flow of a stream. § 7o. Sub-flow defined. § 76. Sub-flow may be appropriated. § 77. Percolating water. § 78. Percolating water may be appropriated. § 79. Underground reservoir. § SO. Effect of the new rule. A. SURFACE WATER. ^ 64. Water in a Surface Watercourse. — Water in a sur- face watercourse is the type case of appropriation. The cases almost invariably speak only of "running streams," "flowing water," "water in a watercourse." This is also the language of the California Civil Code^ providing what can be appropriated. "The right to the use of running water flowing in a river or stream or down a canyon or ravine, may be acquired by appropriation." 1 Sec. 1410. Water Rights— 8 114 WATER RIGHTS IN THE WESTERN STATES. § 65 § 65. What Constitutes a Watercourse. — Close questions arise as to what is and what is not a watercourse. In Lux V. Haggin^ the court discusses at length the requi- sites for a watercourse, and concludes that a channel is necessary to the constitution of a watercourse,^ and also a tendency of water to flow in it more or less regu- larly.^ The second requisite is not fulfilled by a chance flow in a channel usually dry all year round,^^ though, on the other hand, the channel need not be full all year round.'' It is a question of fact whether there is a tendency to regular flow, and no presumption of con- tinuance can be indulged from proof of a single flow." Water from a spring is water in a watercourse, how- ever small, if it runs off in a definite channel, with a tendency to regularity;^ and may be appropriated as water in a watercourse,'' even though the appropriator builds a ditch to the very mouth of the spring.^ '^ The water in the spring itself, however, that is, before it has gathered on the surface, is not water in a surface watercourse, but is treated on the principles of under- ground water. ^^ The folloAving definition is quoted from Sanguinetti v. Pock:i2 "A watercourse is defined to be 'a running stream of water; a natural stream, including rivers, creeks, runs, 2 69 Cal. 255, at 413-419, 10 Pae. 674. 3 Accord Razzo v. Varni, 81 Cal. 289, 22 Pac. 848. 4 Accord Barnes v. Sabron, 10 Nev. 217. 5 Lux V. Haggin, avpra. . 6 Spangler v. San Francisco, 84 Cal. 12, IS Am. St. Rep. 158, 23 Pac. 1091. 7 Lux V. Haggin, supra. 8 See Pomeroy on Riparian Rights, sec. 62. « Wilkins v. McCue, 46 Cal. 656. 1" Ely V. Ferguson, 91 Cal. 187, 27 Pac. 587. n <'nlien v. La Canada Water Co., 142 Cal. 437, 7(i Pac 47. 12 136 Cal. 466 at 471, 89 Am. St. Rep. 169, 69 Pae. 98. § 65 WHAT CAN BE APPKOPRTATED. 115 and rivulets.' (Black's Law Dictionary, title Water- courses.) Further defining the term, this court said : 'There must be a stream, usually flowing in a particular direction, though it need not flow continually. It may sometimes be dry. It must flow in a definite channel, having a bed or banks, and usually discharge itself into some other stream or body of water. It must be some- thing more than a mere surface drainage over the en- tire face of the tract of land, occasioned by unusual freshets or other extraordinary causes. It does not in- clude the water flowing in the hollows or ravines in land, which is mere surface water from rain or melting- snow (/. c, snow lying and melting on the land), and is dis(;harged through them from a higher to a lower level, but which at other times are dt^titute of water. Such hollows or ravines are not, in legal contemplation, watercourses.' (Los Angeles etc. Assn. v. Los Angeles. 103 Cal. 466, 37 Pac. 375; citing text-books and cases.) The evidence^ does not bring the depression or swale in (luestion within this definition. This so-called water- course is nothing more than a local drainway to a lim- ited amount of land which has neither a definite be- ginning nor ending, and is like hundreds of siuiilar swales found in land whose surface may be called gen- erally level."^"^ Depressions in the prairies due to the rolling char- acter of the ground, whci-e the surface water drains, are not watercourses.'^ Besides the essential re<|uisites of a channel and a flow, some courts have recently recognized two common characteristics as also usually present: [a) A sub-fl(»\v, seeping with the stream in the soaked soil beneath the bed; (b) A diffused movement of ground water down 13 In general, see Ponieroy on Eiparian Rights, sees. 6. G2. 14 Gibbs V. Williams, 25 Kan. 214. MT Am. Rep. 249. 116 WATEB EIGHTS IN THE WESTERN STATES. §§ 66,67 the sides of the watershed toward the bed.^"^ These are now treated by those courts as part of the stream it- self. They will be matter for discussion hereafter, in speaking of underground waters.^ *^ § 66. Navigable Streams. — The water of navigable streams mav be appropriated as well as the Avater of those not navigable. Thus, for example, a dam in the San Joaquin River at a point where it is navigable, and an appropriation of water there, were upheld against all but the state or some one injured in navigating.^ '^ Whether the point could be raised by the State or those injured in navigating was not decided. The rights on navigable streams are in general all that can be exer- cised without being inconsistent with the public ease- ment of navigation.^® It may be remarked that the title to the bed of navigable streams is in the State.^^ ij 67. Interstate Streams. — Eecently several cases have been decided concerning the rights of appropriators on a stream which crosses a State boundary. The cases are unanimous that no innovations in the law of appro- priation are necessary on that account. "Water is es- sential to human life in the same degree as light and i.j Craig V. Crafton Water Co., 141 Cal. 178, 74 Pac. 762; Monte- eito etc. Co. v. Santa Barbara, 144 Cal. 578, 77 Pae. 1113. 16 Infra, sec. 72 et seq. IT Miller v. Enterprise etc. Co., 142 Cal. 208, 100 Am. St. Rep. 115, 75 Pac. 770. IS Heilbron v. Fowler etc. Canal Co., 75 Cal. 426, at 433, 7 Am. St. Rep. 183, 17 Pac. 535; Unitefl States v. Rio Grande etc. Co., 174 U. S. 690, 19 Sup. Ct. Rep. 770, 43 L. ed. 1136. lit Green v. Swift, 47 Gal. 536; Wright v. Seymour, 69 Cal. 122, 1(1 Viu-. 323; Packer v. Bird, 71 Cal. 134, 11 Pac. 873; Cardwell v. Sacramento. 79 Cal. 347, 21 Pac. 763. See Cal. Pol. Code, 2875, 3479; Cal, Civ. Code, sec. 670. See Long on Irrigation, sec. 34, ac- cord. § 67 WHAT CAN BE APPROPRIATED. 117 air, and no bounds can be s(4 to its use for supplyinjij the natural wants of men other than the mighty barriers which the Creator has made on the face of the earth,'' says Judge Hallett.^^ A ease of much interest that has been in court for several years is that of Miller & Lux v. Rickey .^i That case involved rights on the AValker River, which rises in the Sierras in California, and flows east across the sands of Nevada, terminating in A\'alker Lake. The use of the waters of the river for irrigation has caused the lake to shrink alarmingly. The plaintiff sued in Nevada for injury to his rights in Nevada, the defendant being among those who diverted the water in California. Judge Hawley, in the circuit court, upheld the right to briug suit. Interesting developments in this connec- tion may be expected from the litigation recently started over the use of the waters of Lake Tahoe, which is situated partly in Nevada and partly in California, The waters of this lake are to be dammed on the Cali- fornia side by the United States Reclamation Service and conducted through the Truckee River to irrigate Nevada lands. The Truckee River itself, moreover, flows through both States. The objection comes from the owners of summer homes and hotels on the lake, and manufacturing and lumber companies on the river, and from the State of California generally, which has long taken pride in the natural beauties of Lake Tahoe. At one time there was a project to divert the lake waters for water supply for San Francisco, but this was given up because of the objection raised by Nevada. An in- junction against the present work has been sought in California, suit being brought in the superior court of 20 In Hoge v. Eaton, 135 Fe.l. 411 (C. C. Colo.). 21 127 Fed. 573 (C. C. Nev.). 118 WATEE EIGHTS IN THE WESTEEN STATES. § 67 Sail Francisco on the ground of personal jurisdiction over the parties. The recent case of Willev v. Declvcr ^^ made a thorough examination of the question of the confiict of laAvs as it concerns the appropriation of water. The following principles may be deduced from that case, and will be found supported by the other decisions on the point. The case involved the rights on a stream which flowed from Montana into Wyoming, plaintiff's diversion hav- ing also been made in Montana for use in Wyoming. (a) The separation of the stream by State lines does not lessen the right to make an appropriation ux)on it in a State where appropriation is allowed. (b) The appropriation thus made in a State where the law of appropriation is recognized is independent of the place to Avhich the water is conducted, and an ap- propriation may hence be made in one State for use in any other to Avhich the water may be conducted.^^ {(■) Rights on a stream valid in the State where ob- tained are recognized in all other States; and hence, not only is the appropriation recognized in other States, but likewise prior rights on the stream obtained in other States, whether of appropriation or riparian rights, will be everywhere else accorded recognition, and the ap- propriator will not be allowed to interfere with them. The fact that riparian rights are recognized in one of the States (Montana following the California doctrine) and not in the other (Wyoming rejecting the California doctrine) is hence immaterial. The Wyoming court will, on the principles of comity, recognize the riparian 22 11 Wyo. 490, ino Am. St. Eop. 939, 78 Pac. 210. 2."; Accord Howpll v. Johnson, ,S9 Eeil. 556, and Morris v. Bean, 123 Fed. 618, the latter, like Willey v. Decker, upholding a diversion in Montana for use in Wyoming. Also Hoge v. Eaton, 135 Fed. 411. § (57 WHAT CAN BE APPROPRIATED. 119 rifjhts oxistinji- in Montana, just as it will recognize the appropriations made there. id) ^Vhere the waters diverted in the upper State (Montana) are ditched across the boundarj^ into tlie lowci- ( Wvoiiiinu), the court in the lower State may en- join a hostile diversion in the upper State, because a ditch (with the water right appurtenant thereto) is an entirety and the injury follows, all along the line, mak- ing the hostile diversion in ^fontana. likewise an injury in Wyoming. This obviates the difficulty arising from the rule that the courts of one State will not adjudge matters involving title to real estate situated in another State. (c) Whether an action in the lower State to quiet title against claims in the upper State would lie was left open ; but in Conant v. Deep Creek etc. Co.^^ it was held that it would not lie, for the reason just given.^^ The threateuf^l pollution of the waters of a river flowing between States, under the authority of one of them, thereby putting the health and comfort of the citizens of the other in jeopardy, presents a cause of action justiciable under the constitution; that is, the supreme court of the United States will have original jurisdiction if one of the States brings suit against the other.2^ The case of Willey v. Decker is valuable, not only for 24 23 Utah, 627, 90 Am. St. Rep. 721, 66 Pac. 188. 23 These general principles will be found also in the following cases: Howell v. Johnson, 89 Fed. 556; Perkins Countv v. Groflf, 114 Fed. 441, 52 C. C. A. 243.; Miller & Lux v. Rickey," 127 Fed. 573; Hoge V. Eaton, 135 Fed. 411; Morris v. Bean, 123 Fed. 618. In Hoge V. Eaton it was held that a constitutional provision to the effect that waters are the property of the State cannot be con- strued to interfere with these views. 2« Missouri v. Illinois etc. District, 180 U. S. 208. 21 Sup. Ct. Rep. 331, 45 L. ed. 497. See this case commented on in Kansas v. Colo- rado, 185 U. S. 125, 22 Sup. Ct. Rep. 552, 46 L. ed. 838. 120 WATER RIGHTS IN THE WESTERN STATES. §§ 68,69 its discussion of the conflict of laws as applied to water rights, but equally for its review of the principles on which the law of appropriation is rested, and its rela- tion to riparian rights.^" § 68. Artificial Watercourses. — Water in ditches, canals, flumes, etc., cannot be appropriated. It is personalty, and subject to the absolute property of its owner. The law of appropriation applies only to natural bodies of water. The law concerning artificial watercourses will be considered later.^^ § 69. Diffused Surface Water. — Diffused surface water from rain and melted snow cannot be appropriated. ^^^ Its presence and movements are too capricious to found any right upon distinct from the land where it is gathered, and such water is owned by the owner of the land where it happens to lie. In fact, the question that usually gives difiiculty is how to get rid of it, some courts calling it a common enemy; but that is another question.^^ "In a dry and arid climate, where irrigation is neces- sary in order to cultivate the soil, the question as to the rights of the proprietors of upper and lower lands in regard to the waste water has seldom arisen, because, as a general rule, the lower land owner is willing to re- ceive, dispose of, and profit by the use of, all water flowing from the upper lands of another in irrigating 27 Ante, sec. 23 et seq. 28 Infra, sec. 128 et seq. 29 Lux V. Haggin. 69 Cal. 255, 10 Pae. 674; .Jacob v. Lorenz, 98 Cal. 332, at 339, 33 Pac. 119; Los Angeles Assn. v. Los Angeles, 103 Cal. 461, 37 Pac, 375; Sanguinetti v. Pock, 136 Cal. 466, 89 Am. St. Rep. 169, 69 Pac. 98. 30 See Ogburn v. Conners, 46 Cal. 346, 13 Am. Rep 213, and Mc- Daniel v. Cummings, 83 Cal. 515, 23 Pac. 795. §§ 70,71 WHAT CAN BE APPROPRIATED. 121 his own land. It is seldom that any landowner in this State has occasion to complain of too much water.''-^^ § 70. Lakes and Ponds. — Whether waters of a lake or pond can be appropriated is seldom discussed. The cases almost invariably speak only of water flowinp; in watercourses.'*^ The recent statutes in th<' arid States usually ex- pressly include lakes, or else contain such general words as "all waters of the State," or "all streams and water sources," which would cover the matter. "••'• In California, however, the statute^^ speaks only of streams and running Avater. However, ripai'ian rights attached at common law to lakes and ])onds. The law of appro- priation is assumed likewise to apply to them, though the point is not speciflcalh^ raised.^*^ It is probable that lake water may be appropriated in California as elsewhere, though not mentioned in Civil Code, section 1410, for the California court has said (in another con- nection) that that section is not exhaustive of the kinds of water that can be appropriated.^® § 71. Swamp Lands. — Title to public lands of this char- acter in California rests in the State of California, not 31 Boynton v. Longley, 19 Nev. 69. 3 Am. St. Rep. 781, 6 Pac. 437. 32 And such also is the language of C'al. Civ. Code, sec. 1410. 33 See Appendix. 34 Civ. Code, 1410. 35 Weaver v. Eureka etc. Co.. 15 Cal. 271. and Osgood v. El Do- rado etc. Co., 56 Cal. 571; a dictirni to the same eflfect appears in Baxter v. Gilbert, 125 Cal. 580, .58 Pac. 129. 374. 36 Katz v. Walkinshaw. 141 Cal. 116. 99 Am. St. Rep. 35, 70 Pac. 663, 74 Pac. 766. The appropriation of the waters of a lake was upheld in Cole v. Richards Irr. Co., 27 Utah, 205, 101 Am. St. Rep. 962, 75 Pac. 376. See, also, Pomeroy on Riparian Rights, sec. 51. As- sumed in Kinney on Irrigation, pantiiiii. 122 WATER EIGHTS IN THE WESTEEX STATES. § 71 the United States, and thev are dealt with bv special statutes and rules of their own.^" Kules for the disposal of swamp lands in California are contained in the Political Code, part 3, title 8, chapter 2. Section 3446, Political Code,^^ provides that when- 37 The law concerning them is aiscussed in Lux v. Haggin, 69 Cal. 255, 10 Pac. 674; Heckman v. Swett, 99 Cal. 303, 33 Pac. 1099. 38 Concerning reclamation districts, reference may be made to the following cases (see, also, cases on irrigation districts cited ante, sec. 21): Kimball v. Eeclamation District Fund Commrs., 45 Cal. 344; Hagar v. Board of Supervisors, 47 Cal. 222; People v. Coghill, 47 Cal. 361; Bachman v. Meyer, 49 Cal. 220; People v. Hagar, 49 Cal. 229; Ferran v. Board of Supervisors, 51 Cal. 307; Hagar v. Board of Supervisors, 51 Cal. 474; Ealston v. Board of Supervisors, 51 Cal. 592; People v. Hagar, 52 Cal. 171; People v. Ahern, 52 Cal. 208; People v. Eeclamation Dist., 53 Cal. 346; People v. Houston, 54 Cal. 536; People v. Williams, 56 Cal. 647; Eeclamation Dist. No. 124 v. Coghill, 56 Cal. 607; Levee Dist. No. 1 v. Huber, 57 Cal. 41; People v. Haggin, 57 Cal. 579; Williams v. Board of Supervisors, 58 Cal. 237; Cosner v. Board of Supervisors, 58 Cal. 274; Reclamation Dist. No. 3 v. Kennedy, 58 Cal. 124; Bixler's Appeal, 59 Cal. 550; Mitchell v. Hecker, 59 Cal. i558; Bixler v. Board of Supervisors, 59 Cal. 698; Swamp Land Dist. No. 110 v. Feck, 60 Cal. 403; Eeclamation Dist No. 3 V. Goldman, 61 Cal. 205; Eeclamation Dist. No. 108 v. Evans, 61 Cal. 104; Newman v. Superior Court, 62 Cal. 545; Swamp Land Dist. No. 121 V. Haggin, 64 Cal. 204, 30 Pac. 631; Williams v. Board of Supervisors, 65 Cal. 160, 3 Pac. 667; Eeclamation Dist. No. 3 v. Gold- man, 65 Cal. 635, 4 Pac. 676; Eeclamation Dist. No. 108 v. Hagar, 66 Cal. 54, 4 Pac. 945; People v. Hagar, 66 Cal. 59, 4 Pac. 951; Rec- lamation Dist. No. 3 V. Parvin, 67 Cal. 501, 8 Pac. 43; People v. La Eue, 67 Cal. 526, 8 Pac. 84; Swamp Land Dist. No. 307 v. Gwynn, 70 Cal. 566, 12 Pac. 462; People v. Hulbert, 71 Cal. 72, 12 Pac. 43; Standford v. Felt, 71 Cal. 249, 6 Pac. 900; Lamb v. Reclamation Dist. No. 108, 73 Cal. 125, 2 Am. St. Rep. 775. 14 Pac. 625; People ex rel. Attorney General v. Parvin, 74 Cal. 549, 16 Pac. 490; Swamp Land Dist. No. 407 v. Wilcox, 75 Cal. 443, 17 Pac. 241; Hutson v. Wood- bridge Protection Dist. No. 1, 79 Cal. 90, 61 Pac. 549, 21 Pac. 435; Lord v. Dunster, 79 Cal. 477, 21 Pac. 865; People v. Gunn, 85 Cal. 238, 24 Pac. 718; Reclamation Dist. No. 124 v. Gray, 95 Cal. 601, 30 Pac. 779; Swamp Land Dist. No. 150 v. Silver, 98 Cal. 51, 32 Pac. 866; Marshall v. Taylor, 98 Cal. 55, 35 Am. St. Eep. 144, 32 Pac. 867; Gwynn v. Diersen, 101 Cal. 563, 36 Pac. 103; Eeclamation Dist. No. 542 v. Turner, 104 Cal. 334, 37 Pac, 1038; Lower Kings Elver Eecla- § 71 WHAT (AX IU-: APPROPRIATED. 123 over th(' owners of more tliau one-half of any bcxly of swamp land and overflowed lands desire to reclaim the same, they may present to the board of supervisor's a petition for the formation of a reclamation district. Prior to the enactment of the Political Code, similar lej>islation existed in the statutes, and section 3478 of the Political Code allowed reclamation districts formed under laws ])rior to March 27, 1868, to be reorganized. ( See San Francisco Savings Union v. Reclamation Dis- trict, 144 Cal. 639.) It is held that the Political Code vests in the supervisors absolutely the determination whether the lands are unreclaimed and whether they are subject to independent reclamation; and being so vested, the determination is legislative in its nature, and the courts are po>\'erless to interfere, or to restrain the ex- ercise of the power by the board of supervisors, ((jlide V. Superior C^ourt, 148 Cal. , 81 Pac. 225. ) mation Dist. No. 531 v. Phillii)s, lOS Cal. 306, 39 Pac. 630, 41 Pao. 33.5; Swamp Land Dist. No. 307 v. Clide. 112 Cal. 85, 44 Pac. 451; Haines v. Glide, 117 Cal. 1, 59 Am. St. Rep. 153, 48 Pac. 804; People ex vol. Sels v. Reclamation Dist. No. 551, 117 Cal. 114, 48 Pac. 1016; Reclamation Dist. No. 551 v. Runyon, 117 Cal. 164. 49 Pac. 131; Tulare County v. May, 118 Cal. 303, 50 Pac. 427; People v. Reclama- tion Dist. No. 36, 121 Cal. 522, 50 Pac. 1068. 53 Pac. 1085; Hensley V. Reclamation Dist.. 121 Cal. 96, 53 Pac. 401; Weinreich v. Hensley, 121 Cal. 647. 54 Pac, 254; Reclamation Dist. No. 537 v. Burger, 122 Cal. 442, 55 Pac. 156; Clare v. Sacramento Electric etc. Co., 122 Cal. 504, 55 Pac. 326; People ex rel. Cuff v. City of Oakland, 123 Cal. 598, 59 Pac. 445; Lower Kings River Recl;iniation Dist. No. 531 v. Mc- Cullah, 124 Cal. 175, 56 Pac. 887; California Pastoral Co. v. Whitson, 129 Cal. 376, 62 Pac. 28; Reclamation Dist. No. 108 v. West, 129 Cal. 622, 6'2 Pac. 272; In re Werner, 129 Cal. 567, 62 Pac. 97; People ex rel. Thisby v. Reclamation Dist., 130 Cal. 607, 63 Pac. 27; People v. Levee Dist., 131 Cal. 30, 63 Pac. 676; Adams v. Modesto, 131 Cal. 501. 65 Pac. 1083; Reclamation Dist. No. 563 v. Hall, 131 Cal. 662, 63 Pac. 1000; National Bank v. Greenlaw, 134 Cal. 673, 66 Pac. 963; McCord V. Slavin, 143 Cal. 325, '76 Pac. 1104; San Francisco Savings Union v. Reclamation Dist. No. 124, 144 Cal. 539, 79 Pac. 374; Rec- lamation Dist. No. 551 V. Van Loben Sels, 145 Cal. 181, 78 Pac. 638; Glide V. Superior Court, 148 Cal. — , 81 Pac. 225. 324 WATEK RIGHTS IN THE WESTERN STATES. §§ 72, 73 B. UNDERGROUND WATER. § 72. In General. — Underground water is the kind eon- cernino- which the hiw of watei*s is iinderooincr its great- est of all cliauges in the West. It may be said tenta- tively that underground watin- is to-day in Talifornia treated like water on the surface. This statement may, it is true, be too wide ; but it may be noted at least that in Katz v. Walkinshaw^*-* (the leading case) the court held that there was no difference in pleading, and that an action for "divei^ion of Avater-' will cover either kind. Siome of the other Western States are following California in this ; others are very likely to do so. iN 73. Definite Underground Streams. — The first class of underground water is water tlowing in a. defined under- ground stream. This has always been treated on the same principles as surface streams, even at common law."**^ It can undoubtedly be appropriated.^^ The presumption is against the existence of a definite un- derground stream.^'- The question of underground streams shades off into the question of sub-flow of surface streams, next to be considered. That is, when the surface water disap- pears in the dry season, there may still be a seepage down the channel that does not appear on the surface. Such a case was dealt with as a subterranean stream in Las Angeles v. Pomeroy.^^ Again, the stream may .•59 141 Cal. 116, 99 Am. St. Rep. 35, 70 Pac. 663, 74 Pac. 766. 40 Hanson v. McCue, 42 Cal. 303, at 308, 10 Am. Rep. 299; Cross V. Kitts, 69 Cal. 217, 58 Am. Rep. 558, 10 Pac. 409; Lux v. Haggiu, 69 Cal. 255, at 394, 10 Pac. 674; Hale v. McLea, 53 Cal. 578; Strait V. Brown, 16 Nev. 317, 40 Am. Rep. 497; Pomeroy on Riparian Rights, sec. 63; Farnham on Waters, p. 2084. 41 Ibid; Kinney on Irrigation, sec. 298; Howard v. Perrin (Ariz.), 76 Pac. 460. 4 2 Hanson v. MeCue, 42 Cal. 303, 10 Am. Rep. 299. 43 124 Cal. 597, at 632, 57 Pac. 585. 5;§ 74.7;-) WFTAT TAX BK APPROPRIATED. 125 flow (Mily in parts of its course^ on tlie surface, bein^ carried over tlic h a wider or larger space in and through the in- terstices of the porous material, but in the same general direction as the surface stream and in connection with it, and in a course and within a space reasonably well defined, the conditions being such that the existence and general direction of the body of water moving un- derground can be determined with reasonable accuracy, then that portion of the water thus moving underground should be considered as a part of the watercourse as well as that part which flows over the surface." And again, in Vineland Irr. Dist. v. Azusa Irr. Co. :^^ "The existence of a well-defined sub-surface flow within the bed and banks of streams such as this is well recognized. Says Kinney on Irrigation, section 44 : 'At certain periods of the year water flows on the surface in a well-defined course, and there is at all times what is known as the underflow. This is the broad and deep subterrani^an volume of Avater which slowly flows through th(^ sand and gravel underlying most, if not all, the streams which traverse the country adjacent to the mountain systems of the arid region. These under- ground streams are probably much greater in volume in some cases than the water upon the surface, and are, as far as rights of appropriation or riparian rights are concerned, but a valuable portion of the Avell-defined surface stream.' " The existence of a sub-flow is a question of fact ;*^ the evidence necessary to establish it is further discussed in McClintock v. Hudson.'"' It was first recognized in Los Angeles v. I'omeroy,"'^ the ])ioueer case, though it 4R 126 Cal. 486, at 494, 58 Pac. 1057, 46 L. E. A. 820. 49 Los Angeles v. Pomeroy, 124 Cal. 597, at 632, 57 Pac. 585. no 141 Cal. 275, 74 Pac. 849. 51 124 Cal. 597, 57 Pac. 585. S § 76 WHAT TAX BE APPROPRIATED. 127 had already been repcatodly urjicd upon the court. '"'^ It lias also received recojjnition in Colorado^"^ and in Utah."'^ § 76. Sub-flow may be Appropriated. — Tliis sub-flow is in its nature a fit subject matter for appropriation. It may be appro])riated separately by a tunnel,-'''' or (a matter of much more importance) an ai)i)roj»riation of a stream is an appropriation of the sub-flow also, as an incident.'*'' The usual test of priority ooverus the rijjjhts of the claimants here as elsewhere. Prior appropria- tors of the sub-flow by direct tunnelinj> or prior appro- priators or occupants sted an appropriation notice and began work on a tunnel for developing water, and who con- tinued the work on the tunnel later under compromise agreement with the surface owners; finally an irriga- tion district which began another tunnel on the opposite bank, and finished it first. The tunnel of the company was upheld against that of the district— -chiefly because the surface claimants had agreed to it and had not agreed to the district's tunnel ; partly also, because the company's tunnel, having been started with a notice prior to the district's tunnel, was, as between the two, prior in time by relation, though completed later than the other one.^^* On the other hand, an attempt to appropriate the sub- flow of a stream by means of a tunnel was held invalid »iO 126 Cal. 486, 58 Pac. 1057, 46 L. R. A. 820. til It was also upheld in Whitemore v. Utah etc. Co., 27 Utah, 284, 73 Pac. 764. ground or another, the court dis- claiming to overrule any; but the grounds of distinc- tion are not convincing nor strongly insisted upon in later cases. There had, however, been various dicta against the old rule, as will be noted hereafter. This new rule was fixed purely out of public policy. The old rule was unsuited to conditions in California at large, where, with its large extent of arid land, the widest prosperity depends on putting the land under cultivation by making the underground water serve the largest number of people, and lands and uses. It is a rule grounded on public policy, but the interests of the agriculturists carried the determination of that policy. More especially, agriculturists in the arid South, though the court has always disclaimed making a separate rule for separate parts of the State.^'' The importance of it to the miner and others lies in the fact that mines and excavations are likely to drain wells and springs and the sub-flow of streams in the neighborhood. Will the miner be held liable for taking water that belongs to another? It will be ])roper to C(msider that again later.^® 83 141 Cal. 116, 99 Am. St. Rep. 35, 70 Pac. 6(53, 74 Pac. 766. 84 E. g., Hanson v. McCue, 42 Cal. 303, 10 Am. Rep. 299; Cross v. Kitts, 69 Cal. 217, 58 Am. Rep. 558, 10 Pac. 409; Gould v. Eaton, 111 Cal. 639, 52 Am. St. R«p. 201, i4 Pac. 319; Vineland v. Azusa etc. Co., 126 Cal. 486, 58 Pac. 1057, 46 L. R. A. 820. 85 See Lux v. Haggin, 69 Cal. 255, at 311, 10 Pac. 674. >*e Infra, sec. 157 et scq. 136 WATEE EIGHTS IN THE WESTERN STATES. § 80 It is enough here to point out that underground water, whether in a defined stream, seeping from a surface stream, or percolating diffused unconnected with any stream, in California, may be appropriated for use un- der the law of appropriation. HOW AN APPROPKIATION IS MADE. 137 CHAPTER VI. HOW AN APPKOPKTATIOX IS MADE— IX CALIFOR. NIA AND STATES THAT HAVE NOT ADOPTED IRRIGATION CODES. 8 81. Introductory. § 82. Origin of this method. § 83. Ownersliij) of land not needed. A. BY ACTUAL DIVERSION. i 84. Distingiiished from the Civil Code method. § S5. The Civil Code does not apply. § 86. Examples. § 87. Mere settlement on land not enough. B. TO SECURE THE BENEFIT OF RELATION. 5 88. Object of Civil Code provisions. 8 89. Civil Code provisions chiefly declaratory only. C. NOTICE. 8 90. Form of notice. 8 91. Purpose of notice. 8 92. The notice operates as a warning. § 93. Failure to post notice. 8 94. Notice alone not enough. 8 95. Notice in appropriating underground water. J). BENEFICIAL PURPOSE. 8 96. What constitutes a beneficial purpose. 8 97. Motive. 8 98. Evidence of intention. § 99. Intent i(in alone not enough. E. DILIGENCE. 8 100. Must be diligence in prosecuting construction work. § 101. What constitutes diligence. § 102. Failure to use diligence. 138 WATER RIGHTS IN THE WESTERN STATES. § 81 F. COMPLETION OF CONSTRUCTION WORK. § 103. Completion of work. § 104. What amounts to completion. § 105. Mere diversion. § 106. Changes in course of construction. G. RELATING BACK. § 107. Origin of the doctrine. § 108. Effect of relation. § 109. Actual application. § 110. Recapitulation. § 81. Usin Xev. Stats. 190o. p. 66; Utah Stats. 1905, c. 108. sees. 36-40. Likewise in North Dakota, Oklahoma, South Dakota. (See Appen- dix.) 172 WATEE EIGHTS IN THE WESTEEN STATES. §' 114 § 114. Prosecution of the Work. — In the States which do not require maps upon the filing of the application, duplicate maps must be filed with the State Engineer after its approval. In Nevada the maps must be filed on the approval of the application.^^ In Nebraska (with the Board of Irrigation) and Utah, within six months after approval. ^''^ In all the States the work must be prosecuted with diligence ; but certain limits are placed in some of them. Work must begin in Nebraska and Utah within six months after approval of application.^^ In Wyoming it must begin within a time* fixed by the State Engineer, not exceeding one year.^^ In Idaho if the capacity of the proposed works is less than twenty-five cubic feet per second, work must begin within sixty daj^s; if over that capacity, a bond must be filed within sixty days in an amount fixed by the State Engineer not exceeding ,|10,000.2o The work must be completed, in Idaho, Ok- lahoma, South Dakota, Utah, and Wyoming within five years, but the State Engineer may name a shorter time,^^ while in Nevada it must be completed in the time requested in the application, though the State En- gineer may name a shorter time.^^ In Idaho, Okla- homa and South Dakota there is a further provision that one-fifth of the work must be done in one-half the time allowed, and the State engineers of some of the other States (see forms in Appendix) specify the same requirement in the absence of statute upon the point.^^ 16 Stats. 1905, p. 66. 17 Neb. Conip. Stats. 1903, sees. 6437, 6470; Utah Stats. 1905, c, 108, sees. 42-44. 18 Stats, supra. 19 Eev. Stats., 922. 20 Stats. 1903, p. 223, sees. 2, 3, as amended 1905, p. 357. 21 Stats, supra. 22 Stats. 1905, p. 66. 2.1 Stats, supra. See Appendix. S 115 HOW AN APPROPRIATION IS MADE. 173 Proof of completion of the Avork must be made in all States except Colorado. In Idaho and Utah there are si)ecial methods for making this proof. In the former it must be filed with the State Engineer on a form provided by him, and, if the works exceed a capac- ity of fifty cubic feet per second, must be certified to by some competent and well-known irrigation engineer. This is published for four weeks in a newspaper. The State Engineer then makes an examination of the works and files a report. If all is satisfactory he issues a cer- tificate of completion.^-* In Utah, a sworn statement and proof must be filed with the State Engineer on a form providwl by him, subscribed by two witnesses, and accompanied by maps also certified.^ In most of the States the method of making proof of completion is left to the discretion of the State Engineer or Board of Irrigation. On proof of completion, a certificate is issued which is final, with the exception of four States and Terri- tories,25a where the final certificate is not issued until actual application of the water to a beneficial use, and Colorado, where the first certificate (issued on original application to appropriate) ends the appropriator's con- nection with the oflSce of the State Engineer. § 115. Issuance of Certificate of Appropriation. — The final stage in making the appropriation is the issuance of a certificate of appropriation. These certificates are numbered consecutively " according to the date of orig- inal application for a permit, thus preseiTing the doc- trine of relation, which was one of the chief features of the law of appropriation as it originally arose in Call fornia. 24 Stats, supra. 25 Stats, supra, sees. 42-44. 25a Idaho, North Dakota, Oklahoma, and South Dakota. 174 WATER EIGHTS IN THE WESTERN STATES. §• 116 Upon the proof of completion of work the State En- gineer (the Board of Irrigation in Nebraska) issues a certificate tx) the appropriator under his seal stating de- tails varying in different States. A record of this is made in his office. The appropriator is required to re- cord this with the recorder of the county in which the water is diverted, and, in a few of these States, with the head of the water subdivisions in which the stream lies.2« In Colorado, the approval of the original application constitutes a certificate of appropriation.^" On the other hand, in Idaho, North Dakota, Oklahoma, and South Dakota, there is one further step that must be gone through before the final certificate is issued. Within a fixed time after the issuance of the certificate of completion of work, there must be filed with the State Engineer a sworn notice of actual application and use of the water. This notice must be subscribed by two witnesses. The State Engineer must then make an examination of the use to which the water is put. Pro- tests may be filed with the State Engineer by other par- ties. If all is satisfactory, the State Engineer issues a final certificate, or, as it is in these States called, a license, bearing the number and date of the original application for permit, and it is filed and put on record as in the other Stat^s.^* § 116. Relation — Priority in all dates from the date of filing of the original application; and this is evidenced by numbering all certificates consecutively.^® In Idaho, on enlargement or on a grant of extra time, 26 Stats, supra. See infra, chapter XII. 27 3 M. A. S., 1905 ed., sees. 2265a, 2265h. 28 Idaho Stats. 1903, p. 223, sees. 4-12, and see Appendix B. 29 Stats, supra. § 117 HOW AN APPROPRIATION IS MADE. 175 priority dates from the application for permission to make such enlargement or to have such extra time.^^ § 117. Measurement of Water. — The unit of measure- ment of water is one cubic foot per second ("Second- foot") in Nevada,^^ Nebraska^^ and Wyoming.^'* In Nebraska, however, the miner's inch remains the stand- ard where already in use, and fifty-nine miner's inches are declared equal to one cubic foot per second.^^ In Colorado-^^ and Utah^^ the second-foot is the unit for flowing water, but for volume in the former, one cubic foot is the standard; in the latter, one acre-foot.^^ In some of these States a limit is placed on the amount of water that can be allotted to each appropriator. In Nebraska and Wyoming it is one second-foot for each seventy acres irrigated.^* In Idaho it is one second- foot for each fifty acres, unless the State Engineer other- wise specifies and subject to local customs and rules.^® In Nevada three acre-feet per year was first adopted as a limit, but this has been repealed.^^ The great formality attending appropriation under these statutes is not unlikely to somewhat hinder any but large enterprises, and tend somewhat to prevent small appropriatoi-s from acquiring rights. Evidently it is intended that large companies shall be formed to 30 Stats. 1903, p. 223, sees. 5, 8. 31 Comp. Laws 1900. 32 Comp. Stats. 1903, sec. 6428. 33 Rev. Stats. 968. 34 Stats, supra. 3r. M. A. S. 2467. 36 Stats. 1905, c. 108, sec. 48. 37 43-560 cubic feet. 38 Stats, supra. 39 stats. 1903, p. 223, sec. 9, as amended 1905, p. 174. 40 stats. 1903, p. 18, sec. 2. Repealed in Stats. 1905, p. 66. 176 WATEE EIGHTS IN THE WESTEEN STATES. § 117 supply consumei*s, rather than that consumers should supply themselves directly, as heretofore. The second-foot is the unit for flow and the acre-foot is the unit for volume also in South Dakota,^^ Okla- homa,^ ^ and in New Mexico.*^ Likewise one second- foot for each seventy acres is the maximum alloAved in South Dakota,**^ Oklahoma,*'' and New Mexico.*^ In North Dakota the maximum is one second-foot for each eighty acres.^^ 41 Stats. 1905, p. 201, c. 132, sec. 44. 42 Stats. 1905, p. 274, c. 21, sec. 27. 43 Stats. 1905, p. 270, sec. 3, 4 4 Stats. 1905, p. 201, c. 132, sec. 46. 45 Stats. 1905, p. 274, e. 21, sec. 29. 46 Stats. 1905, p. 270, see. 4. 47 Stats. 1905, p. , sec. 49. LIMITATIONS ON EXERCISE OF THE RIGHT. 177 CHAPTER VIII. LIMITATIONS ON EXEKCISE OF THE EIGHT. § 118. Introductory. A. LIMITATIONS ARISING OUT OF NATURE OF RIGHT. § 119. Nature of the right. § 120. Contracts in general concerning water rights. § 121, Conveyances. § 122. Appurtenance. § 123. Parol sale. § 124. Usefulness and continuance of use. B. LIMITATIONS ON MANNER OF USE. § 125. In general. § 126, Change of means of use. § 127. Wastefulness. § 128. Use in artificial watercourse — ^Ditches, flumes, etc. § 129. The ditch, etc., is an easement. § 130. Ditch and water right distinguished. § 131. Water in artificial watercourse is personalty. S 132. The law of natural waters does not apply to artificial water- courses. § 133. Natural dry ravines as artificial watercourse. § 134. Changes in ditches, etc. § 135. Repair of ditches. § 136. Damage from breaking ditches, etc. § 137. Contracts concerning ditches. C. LIMITATIONS ON QUANTITY OF WATER. § 138. Introductory. § 139. No more than originally claimed. § 140. No more than capacity of ditch. § 141. No more than actually used. § 142, Whole stream. § 143. Where no other claimants. § 144. Preferences and pro-rating. § 145. Appropriations for future needs. § 146. Same. § 147. Summary. Water Rights— 12 178 WATER EIGHTS IN THE WESTERN STATES. §§ 118-120 D. LIMITATIONS ON CHANGE OF PLACE OR PURPOSE. § 148. What constitutes a proper place or purpose. § 149. No injury to others. § 150. Change of place of diversion or use. § 151. Change of purpose. § 118. We now leave the questions arising out of the obtaining of water rights and take it as granted that a valid water right had been obtained by appropriation, as previously set forth. The inquiry now is as to the limits within which the water can be then used. The limitations to be considered are ( 1) those arising out of the nature of the right ; ( 2) those concerning the man- ner of use; (3) concerning the amount used; (4) con- cerning change of the purpose for which used and of the place of diversion or use. A. LIMITATIONS ARISING OUT OF NATURE OF RIGHT. § 119. Nature of the Right. — ^We have already disr cussed the nature of a water right and shown its char- acteristic features.^ It is real estate, an incorporeal hereditament. I It is usufructuary, a use and flow, and there is no / title to the water itself, nor to the channel itself. / It is exclusive. ' It is independent of title or possession of any land. It is entirely distinct from the right to the ditch or other artificial watercourse by which the water is di- verted. It is a possessory right only, and may be lost by abandonment. § 120. Contracts in General Concerning Water Rights. — There is really no limitation on the power to deal with existing appropriations by contract A reference to the 1 Ante, sec. 38 et seq. § 120 LIMITATIONS ON EXERCISE OF THE RIGHT. 179 cases in general will disclose all kinds of contracts made by the owners thereof whereby the water is apportioned between them,, sold, or dealt with like other property. The court in Ortman v. Dixon^ says : "It can be trans- ferred like other property." There would be no benefit in going into details here ; a little more concerning this will be said in dealing with the subject of ditches and artificial watercourses, later. One case may, however, be stated to show the great freedom in this respect.^ A homestead claimant had sold a water right of appropriation and a ditch appur- tenant to the land, before final proceedings. The United States statutes prohibit a homestead claimant from disposing of his land before he acquires full title. This was held not to interfere with the sale of the water rig'ht acquired by appropriation. A similar question arose in Lobdell v. Hall."* It was held that an Indian may make an appropriation. The United States statutes, however, forbid the sale of lands by Indians. The court seems to have thought that the sale of a water right was not within this prohibition. Contracts for water supply are governed by the or- dinary law of contracts. It may be noted that under the California Civil Code, such contracts may be made to run with the land to subsequent purchasers, even in cases where they would not run with the land at com- mon law.^ But that is owing to no peculiarity of the law of appropriation ; it applies to other contracts also.^ 2 13 Cal. 33. ■■i Mt. Carmel etc. Co. v. Webster, 140 Cal. 183, 73 Pae. 826. 4 3 Nev. 507. ■> Fresno Rate Cases; Fresno Canal etc. Co. v. Rowell, 80 Cal. 114, 13 Am. St. Rep. 112; Fresno Canal etc. Co. v. Dunbar, 80 Cal. 530; Balfour v. Fresno Irr. Co., 109 Cal. 221; Fresno Canal etc. Co. v. Park, 129 Cal. 435. 6 See Cal. Civ. Code. sec. 1468. 180 WATER EIGHTS IN THE WESTEEN STATES. § 121 In Colorado there is a special statutory provision con- cerning the "loan" of waterJ § 121. Conveyances. — Possessory rights on the public domain were always recognized as transferable. It is consequently said^ that a water right can be transferred like other property. The only exception is the case of parol sale.^ By a written conveyance priority is pre- served.^*^ Being an interest in realty, a sale of water right is within the statute of frauds, and requires a writing.^^ The sale must be recorded as it is within the recording statutes.^ ^ The water right may be sold on execution as an interest in realty.^^ The statute of limitations concerning land^"* applies to water rights.^ ^ The water right may be sold in parts/ ° the purchasers becoming tenants in common.^^ The sale is complete on delivery of a deed and possession.^ ^ The grantee cannot sue for a diversion antedating the sale.^® A sale 7 Fort Lyon Co. v. Chew (Colo.), 81 Pac. 37.. 8 In Ortman v. Dixon, 13 Cal. 33. 9 Infra, sees. 123, 188. 10 Smith V. O'Hara, 43 Cal. 371; Kinney on Irrigation, sec. 254; Jacob V. Lorenz, 98 Cal. 332, 33 Pac. 119. See eases to this effect col- lected in 65 L. E. A. 407, note. 11 Smith V. O'Hara, 43 Cal. 371; O'Neto v. Eestano, 78 Cal. 374, 20 Pac. 743; Dorris v. Sullivan, 90 Cal. 279, 27 Pac. 216; Hayes v. Fine, 91 Cal. 391, 27 Pac. 772; Griseza v. Terwilliger, 144 Cal. 456, 77 Pac. 1034. 12 Partridge v. McKinney, 10 Cal. 181; Lyles v. Perrin, il9 Cal. 264, 51 Pac. 332; Utah Laws 1905, c. 108, sees. 62, 63, and the irri- gation codes generally. 13 Gleason v. Hill, 65 Cal. 17, 2 Pac. 413. 14 Five years; Cal. Code Civ. Proc, 318. 15 Yankee Jim etc. v. Crary, 25 Cal. 504, 85 Am. Dec. 145; infra, sec. 194 et seq., adverse possession. 16 McDonald v. Askew, 29 Cal. 200. 17 Eose v. Mesmer, 142 Cal. 322, 75 Pac. 905. 18 Booth v. Chapman, 59 Cal. 149. 19 Kimball v. Gearhart, 12 Cal. 27. g 122 LIMITATIONS ON EXERCISE OF THE EIGHT. 181 of the surplus one does not need passes nothinji;, since an appropriation gives no right to such surplus.^^ The right may be sold separate from the land, since it is in- dependent of title to or possession of any land.^^ § 122. Appurtenance. — It is well settled that a water right may pass with land as an appurtenance thereto, or as a parcel thereof.^^ But the water right is not necessarily appurtenant to or parcel of any land ; and whether it is an appur- tenance or parcel is a question of fact resting chiefly upon whether it was used specially for the benefit of the land in question.^^ It will usually in such case pass on a sale of the land, though appurtenances are 20 Johnston v. Little Horse etc. Co. (Wyo.), 79 Pac. 22. 21 Ante, sec. 42, and Hard v. Boise City etc. Co. (Idaho), 76 Pac. 331, and cases collected in 65 L. R. A. 407, note; Long on Irrigation, sec. 77. Under irrigation codes, approval of the State Engineer is necessary. (Appendix B.) 22 Quirk V. Falk, 47 Cal. 453; Reynolds v. Hosmer, 51 Cal. 205; Hungarian etc. Co. v. Moses, 58 Cal. 168; Lower Kings River etc. Co. V. Kings etc., 60 Cal. 408; Fitzell v. Leaky, 72 Cal. 477, 14 Pac. 198; Standart etc. Co. v. Round Valley etc. Co., 77 Cal. 399, 19 Pac. 689; Mitchell v. Amador Canal etc. Co.. 75 Cal. 464, 17 Pac. 246; Conradt V. Hill, 79 Cal. 587, 21 Pac. 1099; McShane v. Carter, 80 Cal. 310, 22 Pac. 178; Crooker v, Benton, 93 Cal. 365, 28 Pac. 953; Clyne v. Benicia etc. Co., 100 Cal. 310, 34 Pac. 714; Dixon v. Schermeier, 110 Cal. 582, 42 Pac. 1091; Smith v. Corbit, 116 Cal. 587, 48 Pac. 725; Williams v. Harter, 121 Cal. 47, 53 Pac. 405; Pendola v. Ramm, 138 Cal. 517, 71 Pac. 624; Senior v. Anderson, 138 Cal. 716, 72 Pac. 349; Nevada etc. Co. v. Bennett, 30 Or. 59, 60 Am. St. Rep. 777, 45 Pac. 472; Arnett v. Linhart, 21 Colo. 188, 40 Pac. 355; Gelwieks v. Todd, 24 Colo. 494, 52 Pac. 788; North American Exploration Co. v. Adams, 104 Fed. 404. See cases collected in 65 L. R. A. 407, note, and 17 Ency. of Law, 515. Utah Laws 1905, c. 108, sec. 617; Idaho Stats. 1903, p. 223, see. 9, as amended 1905, p. 174, sec. 38; Oklahoma Stats. 1905, p. 274, sees. 21, 30; South Dakota Stats, 1905, p. 201, sees. 31, 47, and irrigation codes generally. Cf. Cal. Civ. Code, sec. 662. 23 Quirk V. Falk, 47 Cal. 453; Mitchell v. Amador Canal etc. Co., 79 Cal. 464, 17 Pac. 246; Payne v. Cummings, 146 Cal. 426, SO Pac. 620. 182 WATER EIGHTS IN THE WESTERN STATES. § 122 not mentioned.2^ This suggests the question, probably of little more than academic importance, whether the water right is more properly spoken of as an appurte- nance or as parcel of the land. In most of the cases it is called an appurtenance. In some^^ it is spoken of as an incident to or parcel of the land. In one,-^ the words "appurtenance" and "parcel" are used indiscrimi- nately.^^ It would seem that it is more properly called an appurtenance. Originally the water right was, as riparian right, parcel of the government land through which the stream flowed. The very diversion which gave rise to the appropriation severed it from the land of which it might otherwise have been spoken as a par- cel. That an appropriation may be an appurtenance of land, whereas riparian rights are parcel thereof, would seem to be another way of expressing a distinc- tion between riparian rights and appropriation.^* Water appropriated by a trespasser for use on cer- tain lands does not become appurtenant thereto, and a purchaser of the land from the true owner gets no right to the water.29 Viewing the question of appurtenance more narrowly it will be found that the water right may be appur- tenant to a specific portion of land, viz. : The ditch or artificial watercourse through which the waters flow after diversion,2° or vice versa, the ditch appurtenant • 24 Cave V. Crafts, 53 Cal. 136; McShane v. Carter, 80 Cal. 310, 22 Pac. 178; Smith v. Corbit, 116 Cal. 587, 48 Pac. 725. 25 McShane v. Carter, 80 Cal. 310 22 Pac. 178; Smith v. Corbit, 116 Cal. 587, 48 Pac. 725; Williams v. Harter, 121 Cal. 47, 53 Pac. 405. 26 Payne v. Cummings, 146 Cal. 426, 80 Pac. 620. 27 And see Bank of British N. A. v. Miller (Or.), 6 Fed. 545. 28 See Kinney on Irrigation, sec. 267. 29 Smith V. Logan, 18 Nev. 149, 1 Pac. 678. 30 Williams v. Harter, 121 Cal. 47, 53 Pac. 405; Fudickar v. East § 123 LIMITATIONS ON EXEKCISE OF THE RIGHT. 183 to water right.^^ A discussion of this point may be properly left until reaching the matter of artificial watercourses.^^ § 123. Parol Sale. — In the treatment of parol sale of water rights, there is a peculiarity afforded by the law of appropriation. If the grantee incurs considerable expense, and makes improvements on the faith of the parol sale, the usual rule of specific performance in equity, the part performance taking the case out of the statute of frauds, applies.^^ But it is not necessary to invoke that doctrine. That doctrine would give the grantee only the equitable title and would apply only where the grantor was joined as a party to a suit. A parol sale of a water right, how- ever, in spite of the statute of frauds, may give a good legal title against all the world. This arises out of the peculiar nature of possessory rights on the public domain. In the early days the possessor disclaimed an}^ right to an interest in the land itself; he insisted only on a right to go upon it and use it. The license or permission given by the tacit con- sent of the United States was the thing emphasized. All rights of property are theoretically choses in ac- tion; a right to redress injuries done thereto; and in the early possessory rights tJiis idea, usually a re- mote one elsewhere, came into prominence. Emphasis was placed, not upon the thing itself, but upon the per- mission of the government to make use of it, a license Eiverside etc. Dist., 109 Cal. 29, 41 Pac. 1024; Lower etc. Co. v. Kings etc. Co., 60 Cal. 40S; Reynolds v. Hosmer, 51 Cal. 205. 31 Jacob V. Lorenz, 98 Cal. 332, 33 Pac. 119. 32 Infra, sec. 128 et seq. 33 Flickinger v. Shaw, 87 Cal. 126, 22 Am. St. Rep. 234, 25 Pac. 268, 11 L. R. A. 134; Blankenship v. Whaley, 124 Cal. 300, 57 Pac. 79; Churchill v. Russell (Sept. 1905), 30 Cal Dec. 361. 184 WATER EIGHTS IN THE WESTERN STATES. § 123 personal in its nature. Accordingly it had been held^^ that a transfer of a mining claim operated as a sur- render of the grantor's right and the acquisition of a new one by the grantee on taking possession, so that no writing was needed, and transfers of possessory rights on the public domain were held not within the statute of frauds at all. The supreme court of the United States affirmed this view.^^^ To-day, in spite of these decisions, a sale equivalent to a sale of anything else, operating as a transmission of a right, not as the crea- tion of a new one, is recognized if in writing.^® The possessory estate thus acquired has been elevated to the dignity of other interests in realty, being recognized as an express grant from the government. But the personal license characteristic, as concerns water rights at least, remains of importance in this matter of parol sales. A water right, then, may be transferred by a parol sale, provided the grantee enters into possession.^'^ The same result will be accomplished by a faulty deed.^^ The rights of the grantee, however, are different from those under a true sale, in writing. He does not ac- quire the grantor's right by transmission ; does not step into his shoes; but acquires a new right as an appro- priator by actual diversion. Consequently the grantee loses the priority his grantor had. A parol sale allows claimants between the original appropriation and the 34 In Table Mt. M. C. v. Stranahan, 20 Cal. 198. 35 In Union etc. Co. v. Taylor, 100 U. S. 39, 25 L. ed. 541. And later again in Black v. Elkhorn M. Co., 163 U. S. 445, 16 Sup. Ct. Eep. 1101, 41 L. ed. 221, declared this principle to be correct. 36 As to water rights, cases already cited, and compare California Civil Code, section 1411, "successor in interest." As to mining claims, Lindley on Mines, section 642. 37 Smith V. O'Hara, 43 CaK 371; Griseza v. Terwilliger, 144 Cal. 456, 77 Pac. 1034. 38 Barkley v. Tieleke, 2 Mont. 59. Jl i 123 LIMITATIONS ON EXEKCISE OF THE EIGHT. 185 date of the parol sale, to come in with the priority in their favor as against the grantee.^^ In Smith v. O'Hara, cited supra, the decision was as follows: "The plaintiff adduced no written evidence of the transfer to himself of the right to the ditch through which were conveyed the waters claimed by him, from those who had constructed it, or been in possession of it, but he proved by oral testimony that it was sold to him by Woods, the person, or one of the persons, who had constructed and used it. This evidence was prop- erly stricken out by the court. But the court, in in- structing the jury in respect to the appropriation and use of the waters of the creek, charged them in respect to the relative rights of Woods and the miners who used the waters of the creek. This was calculated to mislead the jury, by giving them the impression that the plaintiff had succeeded to the rights of Woods. The instruction, in that respect, was erroneous, and the de- fendants, in order to correct that erroneous impression, were entitled to have the instruction given which was asked by them to the effect that the plaintiff could not connect himself with the rights acquired by Woods, and Sedgwick, except by deed. We cannot say that this error did not injure the defendants, for it cannot be as- certained from the record whether the jury found for the plaintiff upon his own appropriation and use of the waters or upon that of W^oods and Sedgwick."^^ 39 Smith V. O'Hara, 43 Cal. 371; Griseza v. Terwilliger, 144 Cal. 456, 77 Pac. 1034; Chiatovich v. Davis, 17 Nev. 133, 28 Pac. 239; Salina etc. Co. v. Salina etc. Co., 7 Utah, 456, 27 Pac. 578; Pomeroy on Riparian Rights, sees. 58, 89. See cases collected in 65 L. R. A. 407, note, at 412. 40 See accord Pomeroy on Riparian Rights, sec. 58, Kinuey on Irrigation, sec. 253, and Union Mill & Min. Co. v. Dangberg, 81 Fed. 73, citing cases. Also Low v. Schaflfer, 24 Or. 239, 33 Pac. 678; South Tule etc. Co. v. King, 144 Cal. 450, 77 Pac. 1032; Gould on Waters, sec. 234. 186 WATEE EIGHTS IN THE WESTEEN STATES. § 123 And in a later case the California court says: "The objection made by defendant is, that plaintiffs could not prove title by a parol sale, the interest con- veyed being realty. Plaintiffs answer that the evidence was not offered to prove title, but as declarations against interest and as showing abandonment, to defeat defend- ant's alleged title, and that the court did not admit the evidence to prove title. Mr. Kinney states the doc- trine to be, that the right to the use of the water ac- quired by prior appropriation, and the structure through which the diversion is effected, must be con- veyed by a written instrument, as in the case of real property, and that a verbal sale is nugatory. (Cit- ing cases.) The author further says, however, that such a sale works an abandonment, and the vendee takes his right simply as a subsequent appropriator in his regular order with subsequent appropriators. (Kinney on Ir- rigation, sees. 253, 255, 264.) "Mr. Pomeroy says that abandonment may be express and immediate by the intentional act of the appropriator, or may be implied from his neglect, failure to use due diligence in the construction of his works, non-use of them after completion and the like. The general doc- trine concerning the effect of abandonment is stated to be, that the prior appropriator loses all his exclusive rights to take or use the water which he had acquired. 'A verbal sale and transfer of his water right by a prior appropriator operates ipso facto as an abandonment thereof. Such act shows an unequivocal intent on the part of the appropriator to give up and relinquish all of his interest, and, as it does not effect any transfer thereof to the attempted assignee or vendee, the only pos.sible result is an immediate and complete abandon- ment'^^ It is not necessary, we think, to invoke the 41 Pomeroy on Water Eights, sees. 96, 97. § 123 LIMITATIONS ON EXEECISE OF THE EIGHT. 187 rule as to an executed parol contract such as arose in Flickinger v. Shaw,^^ nor to pass upon the applicability of the principle there enunciated to the present case. The evidence clearly was admissible to show abandon- ment, and may be restricted to that object, and thus restricted fully justifies the finding of the court. It was not admitted to prove title, as clearly appears from the ruling of the court. Defendant claimed through Terwilliger, her husband, and offered evidence in sup- port of her claim. It was competent for plaintiffs to show that long before defendant's deed, and continu- ously for many years, he had treated his right as aban- doned, and his verbal sale was admissible as tending to establish this fact. The sale confeiTed no title upon Musgrave, but the subsequent use by him and his as- sociates and their successors of all the water was an ap- propriation of whatever water Terwilliger was entitled to prior to the sale."^^ This principle that the grantee on a parol sale ac-\ quires a new right as an appropriator by actual diver- sion, but that it operates by way of abandonment, for- feiting priority, is in full force in California.^^ But in Montana and Oregon it is losing ground. They have refused to apply it to the case of a settler or squatter who has taken no steps to obtain title by filing upon the land. Such a bare settler has a possessory right to the land which, it is held, may be transferred by pai'ol, and the parol sale will carry the water right as an ap- purtenance, preserving priority.^"' In ^IcDonald v. Lannen the court says: 42 87 Cal. 126, 22 Am. St. Eep. 234, 25 Pae. 208, 11 L. E. A. 134. 43 Griseza v. Terwilliger, 144 Cal. 456, 77 Pac. 1034. 44 See late case cited supra. 45 McDonald v. Lannen, 19 Mont. 78, 47 Pac. 648; Wood v. Lowney, 20 Mont. 273, 50 Pae. 794; Hindman v. Eizor. 21 Or. 112, 27 Pae. 13 (citing Oregon cases). 188 WATER EIGHTS IN THE WESTERN STATES. § 123 "We are satisfied that a verbal transferee of a settler's claim and water right appurtenant thereto, who takes possession of the same, is the successor in interest of the original appropriator of the water, that he does not take it by recapture, and that he can avail himself of his predecessor's priority." In this case, Barkley v. Tieleke, cited supra, was held to have arisen out of mining conditions and not to be applicable to appropriations of water for agricultural purposes. Barkley v. Tieleke was disapproved, if not actually overruled, and as it was relied on by Pom- eroy,^^ and Pomeroy was relied on by the California court in the late case cited supra, this considerably weakens the rule that a parol sale operates by way of abandonment. The reasoning on which this rule is based would lead to the harsh result that a parol sale or a faulty deed en- dangers the rights of the grantor, by working an aban- donment of his priority in case the object of the parol sale is not carried out. Until possession is transferred (possession of ditches, etc., since that is equivalent to possession of tlie water right, ante) he would not be harmed, as until then the parol sale and abandonment would not be complete. But if the grantee, having taken possession, wishes to retransfer to the grantor, or if, for some reason, the grantor wishes to re-enter, as for example, in case of default on promises by the g'rantee, the grantor himself could now claim only as an appropriator by actual diversion, and would have lost his priority. The writer has not seen any decision on the point; but it might properly be held that the abandonment is only conditional ; that a parol sale is evidence of an abandonment, but not conclusive, de- pending on the success of the whole plan of which it 46 Sees. 58, 89, 96, 97. §§ 124, 125 LIMITATIONS ON EXERCISE OF THE EIGHT. 189 was a part. This would t)e supported by the decision in McGuire v. Brown,'* ^ where an owner abandoned an old ditch and used the water thr(ni<>h a new one, which, it turned out, he had mistakenly built on another man's land without right. This, it was held, gave no right to use the water in the new ditch, but there was not neces- sarily an abandonment of the right to use it in the old one. However, in Griseza v. Terwilliger, 144 Cal. 456, 77 Pac. 1034, citing Pomeroy on Riparian Rights, sec- tion 89, it is said that a parol sale is an unequivocal sign of relinquishment, and works ipso facto as an aban- donment.^^ § 124. Usefulness and Continuance of the Use. — This is the most important limitation arising out of the nature of a water right. The water must be continually used for a beneficial purpose. The consideration of this will be postponed until dealing with abandonment. The water right is not held absolute in the full sense, but conditionally upon continued application of the water to a beneficial use.^^ B. LIMITxVTIONS OF MANNEE OF USE. § 125. In General. — It has been said that the appro- priator may use the water in any manner necessary to carry out the use for which it was appropriated.^*' It is a rule applying equally to all branches of the law of waters that whether the use is by waterwheels, tak- ing it in pumps, using it in steam boilers, or hydraulic rams, or appliances of whatever kind, makes no differ- 47 106 Cal. 660, 39 Pac. 1060, 30 L. E. A. 384. 48 See, also, Black v. Elkhorn M. Co., 163 U. S. 445, 16 Sup. Ct. Eep. 1101, 41 L. ed. 221. 49 Infra, chapter XII. 50 Stone V. Biimpus, 46 Cal. 218; Abbott v. Pond, 142 Cal. 393, 76 Pac. 60. 190 WATEE EIGHTS IN THE WESTEEN STATES. §§ 126, 127 ence.^^ The means used are, however, an indication of the amount appropriated.^^ § 126. Change of Means of Use. — The means of use may be chang'ed so long as no one is injured in making the ehange.^^ That is, the priority is not lost ; and whether the change can be made rests on whether the acts done in making it would be lawful under the general law, if done in any other connection. As the change is usually by changing ditches, flumes, etc., the matter is further considered below.^^ § 127. Wastefulness. — The rule against wastefulness is the chief limitation on the manner of use. As the Avater must be used for a beneficial purpose, waste- fulness is not countenanced.-^^ If one builds a dam, spreading out the water for cattle to wallow in, so that much is lost by evaporation, an injunction will be granted.^^ Consequently, the amount of water, to which the appropriator is entitled is limited to the amount actually beneficially used, though he claimed more in his notice, or his works had a larger capac- ity.^ '^ An appropriator, having as much as he needs, 51 Charnock v. Higuerra, 111 Cal. 473, 52 Am. St. Eep. 195, 44 Pac. 171, 32 L. E. A. 190; Coleman v. Le Franc, 137 Cal. 214, 69 Pac. 1011; Miller etc. v. Eickey, 127 Fed. 573; Pomeroy on Eiparian Eights, sec. 50, citing Thomas v. Guiraiul, 6 Colo. 530. 52 Infra, sec. 138 et seq. 53 Cal. Civ. Code, sec. 1415; Charnock v. Higuerra, 111 Cal. 473, 52 Am. St. Eep. 195, 44 Pac. 171, 32 L. E. A. 190. 54 Sec. 134. See, also, sec. 148 et seq. 55 Barrows v. Fox, 98 Cal. 63, 32 Pac. 811; Civ. Code, sec. 1411; Eiverside etc. v. Sargent, 112 Cal. 230, 44 Pac. 460; Bledsoe v. Decrow, 132 Cal. 312, 64 Pac. 397; Barneich v. Mercy, 136 Cal. 205, 68 Pac. 589; Farnham on Waters, p. 2131. 50 Ferrea v. Knipe, 28 Cal. 340, 87 Am. Dec. 128. 57 Eiverside etc. v. Sargent, 112 Cal. 230, 44 Pac. 460; Smith v. Hawkins, 120 Cal. 86, 52 Pac. 139; Bledsoe v. Decrow, 132 Cal. 312, § 128 LIMITATIONS ON EXERCISE OF THE RIGHT. 191 cannot, by buying up riparian land, get an addi- tional amount, having no need for it."'* The fact that a pipe-line conve3^s water with much less loss by seepage and evaporation than a ditch does not neces- sarily show that there is waste within this limitation.^** "Conveying it through a ditch, even, will always cause some lass, and, if the distance is great, or the soil loose or porous the loss will be considerable. This, within any reasonable expense, is generally unavoidable. But, however this may be, if the appropriation has been made before others acquired rights in the stream, after that, no change can be made to their detriment. The first appropriator must continue to use it in at least as economical a nmnner as before, and cannot change the method of use so as to materially increase the waste. "^*' The appropriator is not required to furrow his land before irrigating the same.*^^ § 128. Use in Artificial Watercourse — Ditches, Flumes, in General. — Conveyance in ditches, flumes, etc., is the means usually adopted in putting the water to use. In mining, where the doctrine of appropriation arose, the water is ditched, flumed, or piped long distances, some- times fifty or more miles. A ditch is an artificial water- course. ^^ i^ ig Y^^i estate.*'^ 64 Pac. 397; Walker v. Lillingston, 137 Cal. 401, 70 Pac. 282; infra, sec. 138 et seq. 58 Senior v. Anrlerson, 130 Cal. 290, 62 Pac. 563; S. C, 138 Cal. 716, 72 Pac. 349. •'■'ii Barrows v. Fox, 98 Cal. 63, 32 Pac. 811. 60 Roeder v. Stoin, 23 Nev. 92, 42 Pac. 867. 61 Nephi Irr. Co. v. Vickers (Utah), 81 Pac. 144. 62 Lower Kinors River etc. Ditch Co. v. Kings etc. Co., 60 CaL 408. 63 Clark V. Willett, 35 Cal. 534, at 549. 192 WATEE EIGHTS IN THE WESTEEN STATES. § 129 § 129. The Ditch, etc., is an Easement. — That a ditch is an easement has been frequently declared. "^^ The es- sence of the right to a ditch is the right of way to con- duct water over another's land and there is no owner- ship of the land itself, and the ditch is not land.®^ In view of this case holding that a ditch is not land, it would seem that ejectment would not lie for a ditch. There is, however, an early case^^ holding that eject- ment would lie for a ditch, and it has been frequently cited and relied on,*^^ Changes that are burdensome to the servient tene- ment cannot be made, following the usual law of ease- ments.^^ The rights and duties of repair follow the law of easements. *^^ The right to maintain a ditch arises like any easement, and if on public land, it arises by governmental grant, on the same principle that the water right itself is a gi-ant ; and the burden of the ditch attaches to the land if the land later passes into private 64 Among other cases: Gregory v. Nelson, 41 Cal. 278; Campbell V. West, 44 Cal. 646; Quinlan v. Noble, 75 Cal. 250, 17 Pac. 69; Allen V. San Jose etc. Co., 92 Cal. 138, 28 Pac. 215, 15 L. E. A. 93; Bean V. Stoneman, 104 Cal. 49, 37 Pac. 777, 38 Pac. 39; Burris v. People's Ditch Co., 104 Cal. 248, 37 Pac. 922; Mesnager v. Englehardt, 108 Cal. 68, 41 Pac. 20; Joseph v. Ager, 108 Cal. 517, 41 Pac. 422; Dixon V. Schermeier, 110 Cal. 583, 42 Pac. 1091; Jacob v. Day, 111 Cal. i571, 44 Pac. 243; North Fork etc. Co. v. Edwards, 121 Cal. 662, 54 Pac. 69; Los Angeles v. Pomeroy, 125 Cal. 240, 58 Pac. 69; May- berry V. Alhambra etc. Co., 125 Cal. 444, 54 Pac. 530, 58 Pac, 68; Oliver v. Agasse, 132 Cal. 297, 64 Pac. 401. 65 Mt. Carmel Fruit Co. v. Webster, 140 Cal. 183, 73 Pac. 826: contra, Eeed v. Spicer, 27 Cal. 57. 66 Eeed v. Spicer, 27 Cal. 57. 67 In Pomeroy on Eiparian Eights, sec. 57; Kinney on Irrigation, sec. 224; Integral etc. Co. v. Altoona etc. Co., 75 Fed. 379, 21 C. C. A. 409. But compare Swift v. Goodrich, 70 Cal. 103, 11 Pac. 561. The facts of the Mt. Carmel ease are stated, ante, sec. 120. 68 Infra, sees. 134, 148. 69 Infra, sec. 135. g 130 LIMITATIONS ON EXERCISE OF THE RIGHT. 193 title."'^ But a ditch cannot be maintained over private land witliout the consent of the land owner, unless by prescription.'^^ Miners cannot any more than others — there is no more partiality to miners in buildinjij ditches than in appi'oi)riatin«i- the water."- The rij^ht of way may, however, be taken on eminent domain proceed- ings.''^^ § 130. Ditch and Water Right Distinguished. — The water right itself, as a use and flow, is not an easement It is a parcel of the public land severed therefrom by grant, a thing in itself, not a servitude upon some other thing; whereas the right to a ditch or other artificial watercourse is an easement.^^ "The right to the use of wat^r in a natural stream is in no sense an easement, but its use by diversion, in an artificial watercourse, is strictly an easement. ""^^ Consequently a grant of a right of way for a ditch does not necessarily include a conveyance of a right to take water from the stream from which the ditch is built.''^^ An injury to a water right cannot be proved under a count for an injury to the ditch, or vice versa.'^'^ A canal may well be granted, 70 U. S. Rev. Stats., sees. 2339, 2340; Gregory v. Nelson, 41 Cal. 278; Smith v. Hawkins, 110 Cal. 122, 42 Pae. 453; Jacob v. Dav, 111 Cal. 571. 71 Weimer v. Lowery, 11 Cal. 104; Titeomb v. Kirk, 51 Cal. 28Sj. Los Angeles v. Pomeroy, 125 Cal. 420, 58 Pac. 69. 72 Bliss V. Kingdom, 46 Cal. 651; Titeomb v. Kirk, 51 Cal. 288. 7.3 Infra, chapter XII. 74 See Zimmler v. San Luis Co., 57 Cal. 221; McLear v. Hap- good, 85 Cal. 555, 24 Pae. 788; Natoma etc. Co. v. Hancock, 101 Cal. 42, 31 Pac. 112, 35 Pac. 334 (semble contra); Dixon v. Schermeier, 110 Cal. 582, 42 Pac. 1091; Jacob v. Day, 111 Cal. 571, 44 Pac. 243; Mayberry v. Alhambra etc. Co., 125 Cal. 440, 54 Pac. 530, 58 Pac. 68. See, also, ante, sec. 43. 75 Yale on Mining Claims and Water Rights, p. 204. 76 Zimmler v. San Luis Co., 57 Cal. 221. 77 Nevada etc. Co. v. Kidd, 37 Cal. 282. Water Rights— 13 194 WATER EIGHTS IN THE WESTEEN STATES. § 130 reserving the water rights ^ An abandonment of a ditch does not necessarily include an abandonment of the owner's water right J ^ The water right, however, though entirely a distinct thing from the ditch, may be an appurtenance to a given ditch or the ditch to the water right, if used specifically in connection therewith. In such a case, the water right will pass as an appurtenance in the conveyance of the ditch.^^ In Reynolds v. Hosmer, 51 Cal. 205, the ditch was built in two parts, which were separately sold on foreclosure of a mechanic's lien. It was held that the water right passed as an appurtenance to the upper part, and the owner of the lower part has no water right.^^ Where, however, the ditch is not made up of distinct parts, the water right is appurtenant to every part of the ditch, however long.*^ In this case the rule is applied to allow suit in one county or State through which the ditch runs, for diversion of the water in another county or State, in which the water en- tered the ditch. There would seem to be a conflict between this rule that a water right is appurtenant to the ditch, and the rule of Nevada etc. Co. v. Kidd, siipra^ that an injuiy to the water right (diversion) cannot be proven under a count for injury to the ditch. In Jacobs v. Lorenz^^ the court says the water right is the principal, and if either is appurtenant to the other, the ditch is appurtenant to the water right.^* 78 Eogers v. Riverside etc. Co., 132 Cal. 9, 64 Pac. 95. 79 Nichols V. Mcintosh, 19 Colo. 22, 34 Pac. 278. 80 Lower etc. Co. v. Kings etc. Co., 60 Cal. 408; Williams v. Barter, 121 Cal. 47, 53 Pac. 405. 81 Accord 6 Wall. 561. 82 Lower Kings River etc. Co. v. Kings etc. Co., 60 Cal. 408; Willey V. Decker, 11 Wyo. 496, 100 Am. St. Eep. 939, 73 Pac. 210. 83 98 Cal. 332, 33 Pac. 119. 84 See cases collected in the note to 65 L. E. A. 407. S 131 LIMITATIONS ON EXEECISE OF THE RIGHT. 195 ;< 131. The Water Flowing in Artificial Watercourse is Personalty. — That the water tlowiiij.;; in a ditch or other artificial watercourse or appliance is personalty was recofjjnized in numerous cases .^^ The ditch owner is said to have title to the very body of water there flow- ing, as distinguished from the mere use and flow of the water right itself.^^ The water in a ditch being in the owner's possession, and under his control, becomes his personal property.^^ The only California case where the point wa.s actually decided, however, is the case of Heyneman v. Blake, 19 Cal. 579. The court, in de- ciding that a corporation organized to sell water was organized for trade or commerce, said : "Water, when, collected in reservoirs or pipes, and thus sepai*ated from the original source of supply, is personal property and as much the subject of sale as an article of commerce — as ordinary goods and merchandise."^* 85 Kidd V. Laird, 15 Cal. 161, at 180, 76 Am. Dec. 472 (dictum); Heyneman v. Blake, 19 Cal. 579; Nevada etc. Co. v. Kidd, 37 Cal. 282, at 326 (dictum); Parks v. Hoyt, 57 Cal. 44 (senihle) ; Green v. Carotta, 72 Cal. 267, 13 Pac. 685 (dictum); Eiverside etc. v. Gage, 89 Cal. 410, 26 Pac. 889 (dictum); Ball v. Kehl, 95 Cal. 606, at 613, 30 Pac. 780 (dictum); McGuire v. Brown, 106 Cal. 660, 39 Pac. 1060, 30 L. R. A. 384; Dunsmuir v. Port Angeles etc. Co., 24 Wash. 104, 63 Pac. 1095; Boise City etc. Co. v. Stewart (Idaho), 77 Pac. 25. 86 Green v. Carotta, 72 Cal. 67; McGuire v. Brown, 106 Cal. 660, 39 Pac. 1060, 30 L. R. A. 384. 87 Ball V. Kehl, 95 Cal. 606, at 613, 30 Pac. 780. 88 The only expression opposed to this is that in Fudickar v. East Riverside etc. Co., 109 Cal. 28, at 36, 41 Pac. 1024, where the water flowing in a canal is considered as an appurtenance to the canal and hence realty. The court said: "So long as the water flows in its natural channel it is undoubt- edly real property, and while flowing by right through a canal or pipe, which is real property, and owned by the owner of the water, it is appurtenant to the canal or pipe, and, therefore, real prop- erty (Civ. Code, sees. 658, 662)." But the court clearly had in mind the water right and not "the very body of water" in the canal. As we have seen, the water 196 WATEE EIGHTS IN THE WESTEEN STATES. § 132 § 132. The Law of Natural Waters does not Apply to Ar- tificial Watercourses. — As the water in a ditch is personal property, owned by the ditch owner as completely as other personal property, the landowner through whose land the ditch runs can claim no riparian rights therein.*^ Nor is it subject to appropriation by oth- ers.^*^ A use by another of waste water discharged from a ditch can give rise to neither an appropriation nor to a right by prescription, or estoppel, to have the dis- charge kept up, even though expensive ditches and flumes were built for the purpose of utilizing such waste.'^^ In Stockman v. Riverside etc. Co., 64 Cal. 57, at 59, 28 Pac. 116, the court says on this point : "We have been cited to no authority, and know of none that holds that the bare fact that the ditch was con- structed with the knowledge of the plaintiffs and their grantors, and without objection on their part, though at heavy cost, is sufficient to operate an estoppel. There must be some degree of turpitude in the con- duct of a party before a court of equity will estop him right may be appurtenant to the canal; but the water itself therein is personalty, 89 Creighton v. Kaweah Co., 67 Cal. 221, 7 Pac. 658; Green v. Carotta, 72 Cal. 267, 13 Pac. 685. 90 Carclelli v. Comstock etc. Co., 26 Nev. 284, 66 Pac. 950— water from Sutro tunnel. Compare, however, Oklahoma Stats. 1905, p. 224, sec. 45; South Dakota Stats. 1905, p. 201, sec. 56. 91 Dougherty v. Creary, 30 Cal. 290, 89 Am. Dec. 116; Stone v. Bumpus, 40 Cal. 428; Hanson v. McCue, 42 Cal. 303, 10 Am. Eep. 299; Correa v. Frietas, 42 Cal. 339; Stockton v. Eiverside etc. Co., 64 Cal. 57, at 59, 28 Pac. 116; Anaheim etc. Co. v. Semi-Tropic etc. Co., 64 Cal. 185, 30 Pac. 623; Lux v. Haggin, 69 Cal. 255, at 260, 10 Pac. 674, disapproving Parke v. Kilham, 8 Cal. 77, 68 Am. Dec. 310, on this point; Lakeside Ditch Co. v. Crane, 80 Cal. 181, 22 Pac. 76; Hargrave v. Cook, 108 Cal. 72, 41 Pac. 18. See Yale on Mining Claims and Water Eights, 201. Accord Cardelli v. Comstock Co., 26 Nev. 284, 66 Pac. 950; Fairplay etc. Co. v. Weston, 29 Colo. 125, 93 Am. St. Eep. 719, note, 67 Pac. 160. S 132 LIMITATIONS ON EXERCISE OF THE RiaHT. 197 from the assertiou of his tith^^ — the effect of the estop- pel being to forfeit his property, and transfer its enjoy- ment to anotlier, (Bogos v. Merced ^Mining Co., 14 Cal. 368.)" Tliis is in accord with the leading English case of Arkwright v. Gell, 5 Mees. & W. 22G. The distinction between the artificial watercourse (and the water in it) and the water right in the natural stream must be kej)t in mind. Tliose who claim as ap- propriators of the natural stream, as in the usual case of successive appropriators, are fully protected. The rule that lower claimants can acquire no rights in the discharge ai)plies only to artificial watercourses.'^^ An adverse use of the ditcli itself, or of the water in it before its discharge, will give rise to a prescriptive right.^^ The question of adverse use of artificial water- coui'ses in cases where the water is itself collected ar- tificially, as in the case of water pumped from a mine and run off in a ditch, is discussed in the books cited in the preceding note. It is a refinement that we need not here go into, as we are dealing only with water naturally existing in a stream or other natural bod}', originally. A recent case in this connection may, however, be mentioned. It arose out of the waters flowing from the Sutro tunnel, below Vii-ginia City, Nevada. Plaintiif used wiLste water that was being pumped from the Corn- stock mines, and discharged in large volume through the Sutro tunnel, Axhich has bcnm built to drain those mines. Tliis discharge, the court held, was an artifi- cial stream, and not subject to appropriation by others. The court put this case: 02 See Brown v. Mullin. 65 Cal. 89, 3 Pac. 99; Ball v. Kehl, 95 Cal. 606, 30 Pac. 780; Last Chance Co. v. Bunker Hill Co., 49 Fed. 430. 93 Infra, sec. 194 et seq. See Yale on Mining Claims and Water Rights, p. 202 et seq.; Blanchard and Weeks on Mining Claims and Water Rights, p. 822. 198 WATER EIGHTS IN THE WESTERN STATES. § 133 "One further illustration : A, by artificial means, fills a tank or reservoir on his own land to-daj-, and permits the waters to flow down to B's land and irrigate B's land. Probably A's conduct gives to B the right to that water — that individual tank or reservoir full. But suppose A fills the same tank or reservoir to-mbrrow, but chooses to use this water — this tank or reservoir full — to irrigate his own land ; what right has B to this last water? We think none, and it makes no material difference if such a state of things were kept up for a long number of years. In such case, time would raise no presumption of grant, and A could at any time stop the production of such artificial and temporary stream ; and he could also, at any time, if he continued the pro- duction of such stream, put the waters thereof to his own use."^^ In this case, counsel argued "That such waters are just as absolutely the property of the cor- poration defendant as if such water were manufactured each day from oxygen and hydrogen by the corporation defendant." § 133. Natural Dry Eavines as Artificial Watercourses. — The peculiar necessities of mining gave rise to many cases where a stream was diverted, ditched to a dry ravine, and allowed to run down there as a link in a ditch line, to convey the water to the place of use. This may well be done.^^ In such cases, the dry ravines and the water in it are treated on the principles of artificial watercourses, like ditches,^^ and the water in it like- wise as personalty."" 04 Canlelli v. Comstock T. Co., 26 Nev. 284, 66 Pac. 950. nr> Infra, sec. 187. 00 Richardson v. Kier, 34 Cal. 63, 91 Am. Dec. 681. 97 Parks Canal & Min. Co. v. Hoyt, 57 Cal. 44. See, also, infra, sec. 187. § 134 LIMITATIONS ON EXERCISE OF THE RIGHT. 199 § 134. Changes in Ditches, etc. — As the right to the ditch or other artificial waterc^ourse is an easement, no change can be made that is burdensome to the servient tenement, or that changes the character of the servi- tude. At the present day it is important to note that consequently a ditch cannot be changed to a pipe-line, because it is held to be a material change in the char- acter of the servitude.^^ And, in general, a change that is to the disadvantage of the servient tenement can- not be made without permission.^^ In a case just decided by the supreme court of Cali- fornia^^* it is said : i "We mHH\ not here discuss the question as to whether defendants might lawfully have constructed a ditch of the same size as their flume along their flume line. (See, however, Allen v. San Jose Land & Water Co., 92 Cal. 138; Barrows v. Fox, 98 Cal. 63, 66.) "They constructed this ditch upon another line, and for this purpose, they appropriated to their use different land of plaintiff. "The precise location of the right of way had been as definitely and finally fixed by the acts of the defendants as it would have been had the meets and bounds been set forth in an instrument of grant. (See 14 Cyc. Law & Pr., pp. 1161, 1205.) Defendants had acquired the right to that precise location and no other. The re- mainder of i)laintiff's land was his, free from any right of defendants. We know of no principle of law that 98 Allen V. San Jose Water Co., 92 Cal. 138, 28 Pac. 215, 15 L. R. A, 93; Oliver v. Agasse, 132 Cal. 297, 64 Pac. 401. Contra, Bean v. Stoneman, 104 Cal. 49. 37 Pac. 777, 38 Pac. 39. »9 Burris v. People's Ditch Co., 104 Cal. 248, 37 Pac. 922; Joseph V. Ager, 108 Cal. 517. 41 Pac. 422; Jacob v. Day, 111 Cal. 571, 44 Pac. 243; North Fork etc. Co. v. Edwards, 121 Cal. 662, 54 Pac. 69; Los Angeles v. Pomeroy, 125 Cal. 420, 58 Pac. 69; Vestal v. Young, 148 Cal. , 30 Cal. Dec. 313, 317, Sept. 16, 1905. 99a Vestal v. Young, 148 Cal. , 30 Cal. Dec. 313, 317. 200 "WATEE RIGHTS IN" THE WESTERN STATES. § 134 would warrant defendants in subjecting, without his consent, another and different portion of his land to their use, even although they abandoned their former location. It is elementary that the location of an ease- ment of this character cannot be changed by either party without the other's consent, after it has once been finally established, whether by the express terms of a grant, or by acts of the parties tantamount in their effect. (See Jag-ui v. Johnson, 27 N. J. Eq. 526, 552.) The granting of a right over one portion of a person's land, gives the grantee no right over any other portion. Where such a grantee attempts to exercise his right over some other portion, by subjecting such portion to his use, without the consent of the owner, he deprives the owner of the free use and possession thereof, and his acts, if continued the requisite time, will ripen into an easement, and the owner will be permanently deprived of his property. That such a result injuriously affects the rights of the owner cannot well be questioned. As was said in Brown v. People's Ditch Co. ( 104 Cal. 248) : ^It is well settled that the owner of an easement cannot change its character, or materially increase the burden upon the servient estate, or injuriously affect the rights of other persons.' "It is entirely imnmterial in this connection that the new line was only from one to twenty feet distant from the old line. It was upon property of plaintiff, over which defendants had no right whatever, and the prin- ciple is the same as if the new line had been hundreds of feet away from the old one." The ditch owner, likewise, cannot be forced to make a change by the landowner. The latter cannot fort-e the former to substitute a pipe-line for his ditch,^^*^ even though the pipe-line would be a more efficient way 100 Gregory v. Nelson, 41 Cal. 278. §§135,136 LIMITATIONS ON EXERCISE OF THE RIGHT. 201 of handliiiji- the water, minimizing loss in transmis- sion.^ °^ Changes that do not work to the disadvantage of the rights of others may, however, be made.^''^ § 135. Repair of Ditches. — As in the case of any ease- ment, the ditch owner, as the dominant, has the duty of keeping the ditch in repair, and not the landowner.^''-^ Correspondingly he has a right of entry upon the ser- vient estate to make the repairs.^*'^ The landowner, on his part, cannot remove the lateral or subjacent sup- port to wliich the ditch is entitled. ^'^-'^ Otherwise he is free to use his land in the ordinary way, such as for pas- turing sheep, though they trample the ditch. It is the ditch owner's duty to keep the ditch in repair against damage from the ordinary use of tlu^ land hy the land- owner.^""^ Where ditch crosses ditch, the later claim- ant must adjust the crossings so as not to interfere with the prior ditch.^^'^ § 136. Damage from Breaking Ditches, etc. — The use by means of ditches, flumes, etc., is, of course, the most usual, and using the wat^r in this way does not, by any means, make the appropriator an insurer of others against damage from breaking, overflow, seepage, or 101 Barrows v. Fox, 98 Cal. 63, 32 Pac. 811. 102 Cal. Civ. Code, sec. 1415. See siiprn, see. 126 et seq. 10.3 Fraler v. Sears etc. Co., 12 Cal. 556, 73 Am. Dee. .562; Rich- ardson V. Kier, 34 Cal. 63, 91 Am. Dec. 681; Richardson v. Kier, 37 Cal. 263; Durfee v. Oarvey, 78 Cal. 546, 21 Pac. 302; Bean v. Stone- man, 104 Cal. 49, 37 Pac. 777, 38 Pac. 39. 104 Pico V. Colimas, 32 Cal. 578; Ware v. Walker. 70 Cal. 591. 12 Pac. 475. 10.-, Gregory v. Nelson, 41 Cal. 278; Lorenz v. Waldron, 96 Cal. 243, 31 Pac. 54. 106 Durfee v. Garvey, 78 Cal. 546, 21 Pac. 302. 107 Jennison v. Kirk, 98 U. S. 453. 25 L. ed. 240. 202 WATEE EIGHTS IN THE WESTEEN STATES. § 136 other escape of the water. The famous English case of Fletcher v. Rylands, L. R. 1 Ex. 265, L. R. 3 H. L. 330, declared that a man builds a reservoir, or other works to hold water, at his peril. But such is not the law in the West.^^^ The ditch owner is not liable merely because the break, etc., occurred, but only if it occurred through his negligence. Negligence must be shown.^"^ It is not even a case of res ipsa loquitur , and negligence is not presumed from the mere fact that a break, etc., occurred.^ ^"^ The ordinary rule of negli- gence that there must be a failure to use the care which an ordinary prudent man would have taken under the circumstances applies.^ ^^ A flood resulting from an unprecedented rainstorm causes no liability,^ ^^ but floods that are of periodical occurrence must be guarded against by the ditch owner, as it is possible to take pre- cautions against floods of that kind.^^^ In the latter case cited in the foregoing note the court says : "The injury complained of occurred in a season of high water caused by the melting of the snow on the inountains above. The overflow so caused is periodical, and may be, and is, anticipated by all persons inhabit- ing the regions where the alleged damage occurred. 3 08 Tenney v. Miners' Ditch Co., 7 Cal. 335; Hoffman v. Tuolumne etc, Co., 10 Cal. 413; Everett v. Hydraulic Co., 23 Cal. 225; Camp- bell V. Bear Eiver Co., 35 Cal. 679; Howell v. Big Horn Basin etc. Co. (Wyo.), 81 Pac. 785, citing cases; Pomeroy on Riparian Rights, sec. 72. See 81 Am. St. Rep. 492, note; Blanchard and Weeks on Mining Claims and Water Rights, 748. 109 Todd V. Coehell, 17 Cal. 98; Richardson v. Kier, 34 Cal. 63, 91 Am. Dec. 681. 110 Tenney v. Miners' etc. Co., 7 Cal. 335. 111 Wolf V. St. Louis etc. Co., 10 Cal. 541, and cases just cited. Cf., also, Parker v. Gregg, 136 Cal. 413, 69 Pac. 22. 112 Mathews v. Kinsell, 41 Cal. 512; Chidester v. Consolidated Ditch Co., 59 Cal. 197. 113 Turner v. Tuolumne etc. Co., 25 Cal. 397; Chidester v. Con- solidated Ditch Co., 59 Cal. 197. § 137 LIMITATIONS ON EXERCISE OF THE RIGHT. 203 The oblip:at.ion rested on defendant to keep the banks of its canal in repair. It was bound to use ordinary diliropriator by actual diversion, the code formalities not being followed. An appropriation made under the present statutes of all States, however, requires the amount claimed to be specially statcMl in the notice or in the application for permit, and is limited to that as the maximum.^^e 120 Reynolds v. Hosmer, 51 Cal. 205. 121 Gleason v. Hill, 65 Cal. 17, 2 Pac. 413. 122 Cave V. Crafts, 53 Cal. 135. 123 Supra, see. 123. 124 Senior v. Anderson, 115 Cal. 496, 47 Pac. 454; Union etc. Co. V. Dangberg, 81 Fed, 73; Becker v. Marble Creek etc. Co., 15 Utah, 225, 49 Pac. 892, 1119, and cases infra. 125 White V. Todd's Valley etc. Co., 8 Cal. 443, 68 Am. Dec. 338; Ortman v. Dixon, 13 Cal. 33; McDonald v. Bear River etc. Co., 13 Cal. 220; McKinney v. Smith, 21 Cal. 374. 12C See ante, chapters VI and VTI. §§ 140, 141 LIMITATIONS ON EXEKCISE OF THE RIGHT. 205 § 140. No More Than Capacity of Ditch. — The appropri- ator, by claiming more than he actually diverts, gets no right to divert the surplus later as against subsequent claimants; and hence, the capacity of his ditch, if less than the amount claimed, limits the amount to which he is entitled, allowing a reasonable time after completion of the ditcli to remove boulders or other obstruc- tions.^2" The quantity of water appropriated is meas- ured by the capacity of the ditch at the smallest point, as determined by evidence of size and grade.^^^ § 141. No More Than Actually Used for a Beneficial Pur- pose. — The appropriator is not even entitled to the quantity actually diverted, if he uses only a portion of it; his right is limited to the amount so actually used.129 In calculating the amount actually used, the amount lost in necessary fluming must be added, even though 127 White V. Todd's etc. Co., 8 Cal. 443, 68 Am. Dec. 338; Ortman V. Dixon, 13 Cal. 33; McKinney v. Smith, 21 Cal. 374; Posachane etc. Co. V. Standart, 97 Cal. 476, 32 Pac. 532; Bean v. Stoneman, 104 Cal. 49, 37 Pac. 777, 38 Pac. 39; Senior v. Anderson, 115 Cal.' 496, 47 Pac. 454; San Luis etc. Co. v. Estrada, 117 Cal. 168, 48 Pac. 1075;' Pomeroy on Riparian Rights, sees. 80, 81; Kinney on Irrigation, sees. 162, 166. See 60 Am. St. Rep. 808, note, 814, note. 128 Ophir S. M. Co. v. Carpenter, 6 Nev. 393; Barnes v. Sabron, 10 Nev. 217. 129 White V. Todd's etc. Co., 8 Cal. 443, 68 Am. Dec. 338; Dough- tery v. Haggin, 61 Cal. 305; Barrows v. Fox, 98 Cal. 63, 32 Pac. 811; Riverside etc. Co. v. Sargent, 112 Cal. 230, 44 Pac. 560; Santa Paula etc. Works v. Peralta, 113 Cal. 38, 45 Pac. 168; Senior v. An- derson, 115 Cal. 496, 47 Pac. 454; Smith v. Hawkins, 120 Cal. 86, 52 Pac. 139; Senior v. Anderson, 130 Cal. 290, at 297, 62 Pac. 563; Bledsoe v. Decrow, 132 Cal. 312, 64 Pac. 397; Strong v. Baldwin, 137 Cal. 432, 70 Pac. 288; Union etc. Co. v. Dangberg, 81 Fed. 73; Simp- son V. Williams, 18 Nev. 43, 4 Pae. 1213. Cases accord cited in 17 Ency. of Law, 503; Kinney on Irrigation, sees, 162, 166, 230; 60 Am. St. Rep. 799, note. 206 WATER EIGHTS IN THE WESTERN) STATES. § 141 there would be no loss if the water were transported in some other way as, for example, by a pipe-line, ^^"^ One using only an insignificant quantity of water for watering a garden patch cannot later claim that he has a right to enough water to irrigate a farm.^^^ As the amount is limited by beneficial use, a decree which, in effect, allows respondents all the water their ditch will carry during the irrigating season of each year, irrespective of its necessity, and which enjoins others from interfering therewith, is erroneous.^ ^^ The injunction should, it seems, contain a qualification "while the full capacity is being put to beneficial use." In one case the court says: "Perhaps the appellant's counsel is of the belief that the plaintiff, having made the first appropriation, is entitled to have the water come down to him to the extent of his appropriation, whether he has use for it or not. If so, he is mistaken. Water is too precious in this arid climate to permit its being unnecessarily wasted."^ ^^ The appropriator is limited to the amount beneficially used because waste is not tolerated. This is a proposition already dis- cussed at length. ^3'* The whole system aims to prevent the obvious danger that a few appropriators might monopolize the whole stream in the rough sense of that word. An appropriation gives an exclusive right, but does not tolerate selfish monopoly ; it is on this account that a statute setting up the law of appropriation in Nebraska was held not to be within a constitutional prohibition against monopolies.^ ^^ 130 Barrow v. Fox, 98 Cal. 63, 32 Pac. 811. 131 San Luis etc. Co. v. Estrada, 117 Cal. 168, 48 Pac. 1075. 132 Gotelli V. Gardelli, 26 Nev. 382, 69 Pac. 8. 133 Roeder v. Stein, 23 Nev. 92, 42 Pac. 867. 134 Ante, sec. 127. 1.J5 Farmers' Irr. Dist. v. Frank (Neb.), 100 N. W. 286; cf. Munroe V. Ivie, 2 Utah, 535. § 142 LIMITATIONS ON EXERCISE OF THE RIGHT. 207 § 142. Whole Stream. — If for a beneficial j^urpose, one may appropriate the whole stream. In times of natural or other deficiency, also, the prior appropriator may still claim his full amount; the loss must fall on the later appropriators.^'^'^ This is in marked contrast to the doctrine of riparian rights, where all claimants have an equal right, and, in time of deficiency, the water would be apportioned among them.^^"^ In Colo- rado and some other States, however, the appropriators will be forced, under some circumstances, to pro-rate,^^* by statute, and priority is given in those States in times of scarcity to those using the water for domestic purposes; next to those using it for irrigation.^ ^^ Says Kinney on Irrigation :^^^ "A great many of our Western streams become nearly dry in the summer just when the water is most needed for irrigation. And so, if a certain stream in the springtime has a flow of five hundred inches, and in the summer time the flow is re- duced to one hundred inches or less, and A, as the first appropriator upon the stream, has legally completed his appropriation of two hundred and fifty inches .... he is entitled, as regards all subsequent claimants to the water, either above or below him on the stream, to all of the water that flows in it during the period that it is equal to two hundred and fifty inches or less, although he entirely shuts off the supply of subsequent appropriators. This may seem a selfish rule to one who is acquainted with only the principles of the com- mon law upon the subject, but it is based upon the gen- eral and uniform principle applicable to all claims by 136 Compare Brown v. Smith, 10 Cal. 508. 137 Tnfra, sec. 213. 138 Farmers' etc. Co. v. White, 32 Colo. 114, 75 Pac. 415. 139 See Appendix and infra, sec. 144. 140 Sec. 225. 208 WATEE EIGHTS IN THE WESTEEN STATES. §§143,14-1 appropriation to waters upon the public domain of the arid West that 'he who has the prior has the superior right.' "141 § 143. Where No Other Claimants. — As against subse- quent appropriators not existing at the time of the en- largement of one's claim, the enlargement may, of course, be made, just as a new appropriation could be made; being in accord with the established doctrine of priority.142 § 144. Preferences and Pro-rating. — Special provisions for times of scarcity usually appear in the irrigation codes of the arid States. Domestic use is first sup- plied; and next, irrigation, and then all other uses.^^'^ In Colorado this preference is enforced by a provision that if water appropriated for domestic use is used for irrigation to any extent whatever, it is a misdemeanor.i^^ Further provisions in Colorado give the water commis- sioners power in time of deficiency to pro-rate the water in volume or in timc^^^ In Utah, the water is pro- rated yearly when the water reaches its annual low-water mark, as though priorities were the same.i^^ In the Idaho constitution, it is declared that in times of scarc- ity, domestic uses shall be supplied fii*st; second, min- 141 See, also, sees. 173, 229, 240; Sayre v. Johnson (Mont.), 81 Pac. 389; Kirk v. Bartholomew, 3 Idaho, 367, 29 Pac. 40, and the emphatic opinion in Hillman v. Hardwick, 3 Idaho, 255, 28 Pac. 438. Accord Long on Irrigation, sec. 57. 142 Beaver etc. Co., v. St. Vrain etc. Co., 6 Colo. App. 130, 40 Pac. 1066, and cases passim. 143 Colo. Const., art. 16, sec. 6; Neb. Comp. Stats., 6451; Utah Stats. 1905, c. 108, sec. 54; and see statutes of other States in Ap- pendix. 144 3 M. A. S., 1905 ed., 2269a. 145 M. A. S. 2259, 2267. 146 Stats. 1905, c. 108, sec. 54. See Appendix. § 145 LIMITATIONS ON EXERCISE OF THE RIGHT. 209 inc: (in orj^anized iuiniii<>' districts); third, aorioiiltural ; aud fourth, iuaiiiifa(turin<;.'^" Similar provisions exist in statutes of some of the other arid States. (See Ap- pendix. ) § 145. Appropriation for Future Needs. — In considering the amount of water to which an appropriator is en- titled, there is a decided tendency to introduce a new feature to meet the requirements of irrigation. If we have correctly stated the history and principles so far, the system of appropriation aims fundamentally at defl- niteness and certainty. It allowed the prior appropri- ator to take what he wanted and do with it what he wanted, if he let the world know, so that later comers would have to take thinjijs as they found them, and would know what they could take. Consequently, later appropriators had to look solely at the amount the prior appropriator was actually applying to a beneficial pur- pose at the time the subsequent claimant arrived. For any enlaroement of amount used thereafter the prior claimant had to take his chances with others at the time he sought to increase the amount. But while in mining a fixed amount may usually be sufficient from the start for all purposes, in irrigation of newly settled land it will not. The need for water grows as the area cultivated grows. The settler can cultivate, perhaps, only a few acres the first year ; but he does everything with a view to later expansion. Be- fore his larger acreage is cleared and planted, however (which may take several years), other claimants to the use of the water have arrived. Does the law allow the former to continue increasing his supply in the face of these later claimants? 147 Art. 15, sec. 3. Water Rights— 14 210 WATER RIGHTS IN THE WESTERN STATES. § 146 The tendency is strong to hold that it does. The amount used need not be a fixed constant quantity. The amount used is still a limit as previously set forth. But it is a variable limit, which may gradually increase as the irrigator's needs increase. In California this principle was aflirmed in Senior v. Anderson, 115 Cal. 496, 47 Pac. 454, though the enlargement was not up- held on the facts of the case. There seems no other California decision on the point, the court relying on Oregon cases. In other jurisdictions, however, the prin- ciple has been repeatedly affirmed — Oregon,^ ^^ Mon- tana,i*» Colorado,i^^ Idaho,!^! and Utah.^^^ § 146. Same. — There are limitations on this princi- ple of figuring future needs in the amount an appro- priator can hold against later claimants. First, he can hold this future-needed amount only for a reasonable time; if he holds it, without using it, longer than is reasonable under the circumstances of each case, the right to it is lost by abandonment. Four years were held to be an unreasonable time in Senior V. Anderson, supra, on the facts of that case, saying: "We do not hold that the Hines appropriation is lim- ited by the quantity of water he could put to a useful purpose upon his land the first or second year, but to 148 Nevada Ditch Co. v. Bennett, 30 Or. 59, 60 Am. St. Eep. 777, 45 Pac. 472, citing cases and thoroughly reviewing the matter; Glaze V. Frost, 44 Or. 29, 74 Pac. 336. 149 Kleinschmidt v. Greiser, 14 Mont. 484, 43 Am. St. Rep. 65'3, 37 Pac. 5; Arnold v. Passavant, 19 Mont. 575, 49 Pac. 400. 150 New Mercer etc. Co. v. Armstrong, 21 Colo. 357, 40 Pac. 989. 151 Hall V. Blackman, 8 Idaho, 272, 68 Pac. 19, 152 Eliot v. Whitmore, 23 Utah, 342, 90 Am. St. Rep. 700, 65 Pac. 70. See, also, Rodgers v. Pitt, 129 Fed. 923, per Judge Hawley, and Kinney on Irrigation, sees. 238, 668a. Compare the dicta in Barnes V. Sabron, 10 Nev. 217, and Union Min. Co. v. Dangberg, quoted ante, sec. 22. § 146 LIMITATIONS ON EXERCISE OF THE RIGHT. 211 such quantity as he could put to a useful purpose upon his land, within a reasonable time by the use of reason- able diligence We think that the time elapsing after 1883^ ^^ was ample to bring under cultivation all the land upon the Hines place intended for cultivation by the use of water." Ten years have been held too long;^^^ thirteen years ;^^'^ eighteen years.^^^ On the other hand, seven years have been held a reasonable time;^^'^ thirteen years ;^^** fourteen years.^^* In Cali- fornia, there is ground for saying that five years will be a limit. In Smith v. Hawkins, 110 Cal. 122, 42 Pac. 453,^®^ it was laid down as a general proposition in Cali- fornia that in all cases the right is lost by forfeiture if there is a failure for five years to apply the water to a beneficial use.^*^^ Second, the future enlargement cannot exceed the original capacity of the ditch. Among the settled prop- ositions of the law of appropriation, Judge Hawley^'^^ includes the following: ''That if the water is used for the purpose of irrigating lands owned by the appropri- at^r, the right is not confined to the amount of water used at the time the appropriation is made; that the ap- 153 To 1887. 154 Hindman v. Rizor, 21 Or. 112, 27 Pac. 13. 155 Low V. Rizor, 25 Or. 551, 37 Pac. 82. 150 New Mercer etc. Co. v. Armstrong, 21 Colo. 357, 40 Pac. 989. 157 Moss V. Rose, 27 Or. 595, 50 Am. St. Rep. 743, 41 Pac. 666. 158 Semhie, Rodgers v. Pitt, 129 Fed. 932. 159 Semhie, Hall v. Blackman, 8 Idaho, 272, 68 Pac. 19. 160 The case of Smith v. Hawkins is quoted and considered again later, infra, sees. 190, 193. 161 Compare the following: An appropriator using twenty-five in- ches entered into a contract reserving his "present right." It was held that water for future needs was not reserved under "present right": Southside etc. Co. v. Burson (Sup. Ct. Cal.), L. A. No. 13S3, Aug. 1, 1905, 148 Cal. . 162 In Union etc. Co. v. Dangberg, 81 Fed. 73; quoted aiiie, sec. 22. The italics are ours. 212 WATER RIGHTS IN THE WESTERN STATES. § 146 propriator is entitled not only to his needs and necessi- ties at that time, but to such other' and further amount of water, irithin the capacity of his ditch as would be re- quired for the future improvement and extended cul- tivation of his land, if the right is otherw^ise kept up." Third, the future needs must have been in mind at the time the appropriation was originally made, and not a mere after-thought ;^^^ that is, the enlarged use must be part of an original policy of expansion.^®* Fourth, probably, until the appropriator's future needs have become present needs and the extra amount is actually used, others may use the water temporarily. Some general quotations may be added. In Arnold V. Passavant,^^"* the appropriation was made for one hundred and eighty acres, but only forty-five were cul- tivated at the time a later claim was initiated. The prior claim for enough to irrigate one hundred and eighty acres Avas upheld, the evidence being "that he cultivated his land and used water to irrigate it, as he and his i^artner got money in their pockets. "^'^^ In Hall V. Blackman^^^ the court says: "The history of ir- rigation in this State shows that the public lands have generally been taken by poor men, and that they have not in twenty years brought into cultivation one-half the land taken by them, and if our irrigation laws re- quired them to cultivate all of their land in a very short time or lose the right to water that they had di- verted and taken to the place of intended use, it would result in defeating the very purpose of the public land laws of Congress and defeat most settlers in acquiring 163 Becker v. Marble Creek etc. Co., 15 Utah, 225, 49 Pac. 892. 164 Accord Long on Irrigation, sec. 59. 105 19 Mont. 575, 49 Pac. 400. 166 Compare sec, 96, ante, et seq. 'ic7 8 Idaho, 272, 68 Pac. 19. § 146 LIMITATIONS ON EXERCISE OF THE RIGHT. 213 the rif?ht to the use of suflficient water to irrigate their lands." In Kodgers v. Pitt,^«* Judge Hawley says: "The con- ditions (draining sloughs and ploughing sage-brush) on the land had to be changed in order to apply the water claimed and appropriated to a useful and beneficial pur- pose. It was part of the enterprise which Marker had in view in making his appropriation. There is no prin- ciple of law that required him under such circumstances to delay making his appropriation until after he suc- ceeded in draining the land and putting it in a condi- tion where it could be cultivated." Kinney on Irrigation^ «^ says: "We find that the rule is that he may make an appropriation of all the water that he will need upon his land, and that the fact that he does not make immediate use of the whole land will not destroy his priority of right if he continues the de- velopment of his land and makes a full use of his water right within a reasonable time." In the recent Idalio statute, it is provided that actual application and use of the waters must be made within a time fixed by the State Engineer when he issues the permit of appropriation, and shall not exceed four years. ^^"* In adjudication of existing priorities by the courts, the time, not exceeding four years, and the amount, for future needs, must be fixed by the decree.^'^ Similar provisions fixing the time for future applica- tion of the water exist in the statutes passed in 1905, by some of the other States.^ "^ We have discussed this point at some length because 168 129 Fed. 932. 169 Sec. 668a. And see Long on Irrigation, sec. 48. 170 Stats. 1903. p. 223, sees. 1. 2, 6, sec. 1 as amended 1905, p. 357. 171 Ibid., see. 38. 172 See Appendix B. 214 WATER RIGHTS IN THE WESTERN STATES. §§ 147, 148 it is one of unusual importance and because it indi- cates the changes introduced in fitting the laAV of ap- propriation to irrigation. The present policy is to favor those who actually undertake to settle in the hitherto unsettled regions. Correspondingly it some- what discourages later arrivals ; but irrigation actually undertaken is considered worth more than later possi- bilities. § 147. Summary. — To sum up the rules concerning the amount of water to which an appropriator is entitled: The amount is limited to that originally claimed, as stated in the notice of appropriation or application for permit, or determined by the general plan and purpose of the appropriator where the appropriation is by actual diversion without notice, as still permitted in Califor- nia; if the capacity of the ditch is less than the amount claimed, then limited to the amount actually diverted, which can never exceed the capacity of the ditch ; if less than both the above is actually used, then to the amount actually used within a reasonable time, several years be- ing allowed an irrigator for expansion (but in California probably not more than five years), during which time his priority to the unused amount is preserved, and later comers can obtain only such temporary rights therein as will not interfere with his use when ready. In some States it has been judicially determined or provided by statute what quantity of water is sufficient to irrigate one acre of land.^"^^ D. LIMITATIONS ON CHANGE OF PLACE OR PURPOSE. § 148. What Constitutes a Proper Place and Purpose. — This matter has been previously discussed; the result 173 Ante, sec. 117; there is no such rule in California. § 149 LIMITATIONS ON EXERCISE OF THE RIGHT. 215 reached being that the water may be used on any land, distant or riparian, owned by the appropriator or not (the cliief characteristie of tlie law of appropriation), and that all imrposes are proper if useful and beneficial. The appropriator may have a double point of diversion. He may use a main flume and a branch flume above, as his business requires, sometimes diverting the water by one, and sometimes by the other.^"* The question now to be considered is how far changes from the orig- inal place or purjwse of use may be made without the necessity of making a new appropriation. § 149. No Injury to Others.— No change can be made to the disadvantage of existing appropriators or, under the California doctrine, of existing riparian proprie- tors. They have acquired vested rights in the stream or neighboring land which receive full protection against later acts of the appropriator. ^^^ Conse- quently, a change in place of diversion, place of use, or purpose of use, which necessitates, for example, the di- version of an additional quantity of water, is not per- mitted as against existing claimants on the stream.^"^ An appropriator, when the stream becomes clogged up with debris, cannot raise his dam (which is equivalent to moving his point of appropriation up stream) if the water thereby is caused to flood mining claims above.^" The rule is stated in Hargrave v. Cook^'^ as follows: 174 Hobart v. Wicks, 15 Nev. 418. 175 See ante, chapter II. 176 Ortman v. Dixon, 13 Cal. 33; McDonald v. Bear River Co., 13 Cal. 220; McKinncy v. Smith, 21 Cal. 374; Davis v. Gale, 32 Cal. 26, 91 Am. Dec. 554; Nevada etc. Co. v. Powell, 34 Cal. 109, 91 Am. Dec. 685; Higgins v. Barker, 42 Cal. 233; Santa Paula etc. Works V. Peralta, 113 Cal. 38, 45 Pac. 168; Smith v. Corbit, 116 Cal. 587, 48 Pac. 725; Pomeroy on Riparian Rights, sec. 79. 177 Nevada etc. Co. v. Powell, 34 Cal. 109, 91 Am. Dec. 685. 178 108 Cal. 72, at 80, 41 Pac. 18. 216 WATEE EIGHTS IN THE WESTEEN STATES. § 150 "He may change the point of diversion to another place upon the servient tenement; he is nevertheless limited in so doing to the exigencies of the situation, and has no right to make such change arbitrarily and at will. He may do so when under certain circum- stances it is required to enable him to take the amount of w^ater to which he has ownership, but then only when 'others are not injured by the change' (Civ, Code, sec. 1412). His rights are the rights of the grantee of an easement, and extend, in the matter of changing the point of diversion, no further than the boundaries of the servient tenement, and even when entering upon this he is under obligation only to make reasonable changes with reasonable care, and also to repair, so far as possible, Avhatever damage his labors may have oc- casioned (Gale and Whately on Easements, 235) ; as to lands other than those subject to his easement, and as to other claimants and owners, he can make no change at all which injuriously affects them or their rights." The consent of the party injured will remove the ob- iection.^'^^ The burden of showing that the change injures others is upon those opposing the change.^ ^^ § 150. Change of Place of Diversion or Use. — It was early decided that the place of use may be changed without loss of priority. It was absolutely necessary in the early mining days, when new ground was being con- tinually opened up. In Maeris v. Bicknell, 7 Cal. 261, 68 Am. Dec. 257, it was held that branches could be run to new mining claims without loss of priority, and that the main ditch itself could be extended to new lo 179 Crescent etc. Co. v. Montgomery, 143 Cal. 248, 76 Pac. 1032. 180 Jacob V. Lorenz, 98 Cal. 332, 33 Pac. 119. § 150 LIMITATIONS ON EXERCISE OF THE RIGHT. 217 calities. In Kidd v. Laird, 15 Cal. 1(1, TO Am. Dec. 472, it was held that the point of diversion or takinjr the water could likewise be changed, Tlie only limita- tion recognized by these cases and those following them^^^ is that above noted, that others must not be in- jured in making the change.^ ®^ In applying the limitation thus generally stated that no rights existing at the time the change is made must be injured, there are numerous cases holding that the rights contemplated by the rule are those of other ap- propriators on the same natural stream ; it does not con- template the claims (which are bare claims and can- not ripen into a right) of those using the waste dis- charge frou) ditches or other artificial watercourses.^ ^^ In the stream itself, later comers have a right to a use and flow — a continuance of the natural flow to the ex- 181 Butte Table Mountain Co. v. Morgan, 19 Cal. 609; Davis v. Gale, 32 Cal. 26, 91 Am. Dec. 554; Junkans v. Bergin, 67 Cal. 267, 7 Pac. 684; Ware v. Walker, 70 Cal. 591, 12 Pac. 475; Ramelli v. Irish, 96 Cal. 214, 31 Pac. 41; McGuire v. Brown, 106 Cal. 660, 39 Pac. 106O, 30 L. R. A. 384; Hargrave v. Cook, 108 Cal. 72, 41 Pac. 18, 30 I/. E. A. 390; Charnock v. Higuerra, 111 Cal. 473, 52 Am. St. Hep. 195, 44 Pae. 171, 32 L. R. A. 190; Santa Paula etc. Co. v. Per- alta, 113 Cal. 38, 45 Pac. 168; Smith v. Corbit, 116 Cal. 587, 48 Pac. 725; San Luis etc. Co. v. Estrada, 117 Cal. 168, 48 Pac. 1075; Vineland etc. Co. v. Azusa etc. Co., 126 Cal. 486, 58 Pac. 1057, 46 L. R. A. 820; Beyers v. Colonial etc. Co., 134 Cal. 553, 66 Pac. 732; Craig v. Crayton etc. Co., 141 Cal. 178, 74 Pac. 762; Southern Cal. etc. Co. v. Wilshire, 144 Cal. 68, at 72, 77 Pac. 767; South- side etc, Co. V. Burson (Sup. Ct. Cal.), L. A. No. 1383, Aug. 1, 1905; and cases cited fitipra, sec. 149. 182 These rules are now incorporated in Cal. Civ. Code, sees. 1412, 1415; Wyoming Stats. 1905, p. 147; South Dakota Stats. 1905, p. 201, sec. 48; Oklahoma Stats. 1905, p. 274, sec. 10; New Mexico Stats. 1905, p. 270, sec. 6, and the statutes of other States generally: See Appendix B. Accord Strickler v. Colorado Springs, 16 Colo. 61, 25 Am. St. Rep. 245, 26 Pac. 314; Greer v. Reiser, 16 Colo. 306, 26 Pac. 770, and cases cited in 17 Ency. of Law, 485; Kinney on Irrigation, sec. 154 et seq. 183 Ante, sec. 132; infra, sec. 191. 218 WATER EIGHTS IN THE WESTERN STATES. §: 151 tent of their appropriation; in the waste from a ditch lower claimants have no right beyond the very particles of water as they come down, with no right to the con- tinuance of the discharge ; a change of place of use, caus- ing the discharge to cease, gives them no ground for complaint.^ ^^ A difficulty arises, however, where the water from a ditch is discharged back again into the natural stream. All the justice seems on the side of considering lower rights as though the discharge were a natural tributary of the stream. To cease the discharge or change its place to the injury of lower claimants on the natural stream should, in justice, be considered as a divei-sion of a tributary and wrongful. Such was the result in the frequently cited case of Last Chance etc. Co. v. Bunker Hill etc. Co.^^^ and in Gassert v. Noyes.^^^ A change of place of diversion or use cannot be made to the injury of lower claimants of any kind on the natural stream, though lower claimants to the waste from a ditch alone may be ignored.^ ^'^ § 151. Change of Purpose. — A change of purpose for which the water is used was at the start treated as a distinct question from change of place.^^^ It was urged in several cases that the right was limited to the pur- pose for Avhich first appropriated and that a use for a new purpose could be obtained only by new appropria- tion. This view obtained some footing in the early de- 184 See sections just cited. 185 (C. C. Idaho), 49 Fed. 430, by Judge Beatty. 186 (Mont.), 44 Pac. 959. 187 For recent statutes on this point in the arid States, see Ap- pendix, and ante, chapter VII. The permission of the State En- gineer must usually be obtained in the arid States in transferring the use from one place to another. 188 E. g., Maeris v. Bicknell, 7 Cal, 261, 68 Am. Dec. 257. I 151 LIMITATIONS ON EXERCISE OF THE RIGHT. 219 cisions.^s'' But it never took a firm hold. In Mc- Donald V. Bear River Co.^»'^ it was held that use for a sawmill could be changed to use for a gristmill, and in Davis V. Gale,'*-^^ it was said (obiter) that use for placer mining could be changed to use for quartz mining with- out loss of priority. The more recent cases are in this line, though thev do not go into the question closely. They disregard any distinction between change of place of use and change of purpose of use. It seems estab- lished that the rule now is that there is no limitation on change of place of use or purpose of use so long as others are not injured by the change,' ^^ j^ ^ recent Nebraska case'^"^ it was held, relying on the California cases, that a change could be made from use for power purposes to use for irrigation. The change may be a result of a sale of the water right, the purchaser using the water for a new purpose. ^^* The following statement may hence be taken as rep- resenting the settled law on the point : "Suppose a party taps a stream of wat^r for the pur- pose of surface mining in a given locality, and after- is" E. g.. Ortman v. Dixon. 13 Cal. 33; McKinney v. Smith, 21 Cal. 374; Hill v. Smith, 27 Cal. 476; Nevada etc. Co. v. Kidd, 37 Cal. 282, at 315; and compare Lowden v. Frey, 67 Cal. 474, 8 Pac. 31; Shenandoah etc. Co. v. Morgan. 106 Cal. 409, at 418, 39 Pac, 802, and note in 43 Am. Dec. 28; and Farnham on Waters, sec. 677. 190 13 Cal. 220. 191 32 Cal. 26, 91 Am. Dee. 554. 192 Ramelli v. Irish, 96 Cal. 214, 31 Pac. 41; Jacob v. Lorenz, 98 Cal. 332, 33 Pac. 119; Gallagher v. Montecito etc. Co., 101 Cal. 242, 35 Pac. 770; Hargrave v. Cook, 108 Cal. 72, 41 Pac. 18, 30 L. R. A. S90; though it should ho noted that only change of place of use is specifically covered by section 1415, California Civil Code. Ac- cord Pomeroy on Riparian Rights, sec. 65; Kinney on Irrigation, sec. 154; Farnham on Waters, sec. 677; and see cases collected in 60 Am. St. Rep. 813, note. i»3 Farmers' etc. Irr. Co. v. Gothenburg Irr. Co. (Neb.), 102 N. W. 487. 194 Ante, sees. 42, 121. 220 WATEE EIGHTS IN THE WESTEEN STATES. § 151 ward finds that the c^roiind will not pay or that ground farther on will pay better, may he not abandon the former and extend his ditch to the latter without losing his priority? Or suppose, after working off the sur- face, he finds quartz, may he not erect a mill and con- vert the water into a motive power without forfeiting his prior right? Suppose he appropriates the water for the purpose of running a sawmill, and, after the timber is exhausted, he finds that a gristmill will pay — may he not convert the former into the latter without sur- rendering his priority to some one who may have sub- sequently and in the meantime, tapped the stream? "We think all this may be done, and are unable to suggest a plausible reason why it may not. In cases like the present, a party acquires a right to a given quantity of water by appropriation and use, and he loses that right by non-use or abandonment. Appropriation, use, and non-use are the tests of his j'ight ; and place of use and character of use are not. AA hen he has made his appropriation, he becomes entitled to the use of the quantity which he has appropriated at any place where he may choose to convey it, and for any useful and beneficial purpose to which he may choose to apply it. Any other rule would lead to endless complications, and most materially impair the value of water rights and privileg'fes."^^^ 195 Davis V. Gale, 32 Cal. 34, 91 Am. Dec. 554. % 152 PROTECTION OF THE RIGHT. 221 CHAPTER IX. PKOTECTION OF THE RIGHT. A. GENERAL PRINCIPLES. § 152. Introduction. § 153. Materiality of injury is. the test. § 154. Later land grants all subject to prior appropriations. B. INJURY TO QUANTITY. § 155. General rules. § 156. Surplus. § 157. Injury from diversion by percolation. § 158. Diversion by percolation under the recent decisions. § 159. The question of motive. § 160. Importance in mining regions. C. IN,JURY TO QUALITY. § 161. Materiality of injury is the test. § 162. Examples. § 163. Mining debris. § 164. Priority. D. PROCEDURE. § 165. Who can sue. •§ 166. Where suit can be brought. § 167. Injunction. § 168. Actions at law. § 169. Actions to quiet title. § 170. Pleading. § 171. Use of physical force. § 172. Crimes. . A. GENERAL PRINCIPLES. § 152. Wo have been consiflerino- up to the present, what the nj)propriat()r has a rijiht to do. Now it is proper to consider what he has a right to complain of; that is, what constitutes an infrinoemont of his right by othei-s. The injury may be to quantity or quality of the water. 222 WATEE EIGHTS IN THE WESTERN STATES. | 153 § 153. Materiality of Injury is the Test. — In respect to the test of wrongful interference, the departure from the common law is great. That system was founded on the equality of right of all riparian proprietors, as ex- pressed in the maxim, ^'Aqua currit et debet currere ut currere solehat.''' Each riparian owner had the right to a reasonable use of the stream, though by so doing the use of the stream by another proprietor was made less favorable. But under the law of appropriation it is the reverse. It is founded on the very disregard of the maxim just quoted. The appropriator gets an inde- pendent and exclusive right; any material interference with which is wrongful, however reasonable the inter- ference might have been between riparian owners. The rules of the common law concerning reasonable- ness have no application,^ though a few dicta will be found to the contrary effect, dating fi*om the time when there was an attempt to minimize the departure of the law of appropriation from the common law.^ The question under the law of appropriation is whether the flow is still substantially fit for the purpose of the prior appropriator.^ "What diminution of quantity or deterioration in quality will constitute an invasion of the rights of the first appropriator will depend upon the special circum- stances of each case, considered with reference to the uses to which the water is applied In all contro- versies, therefore, between him and parties subsequently claiming the water, the question for determination is 1 Hill V. King, 8 Cal. 336. ^ Ante, sec. 7 (e. g., Phoenix etc. Co. v. Fletcher, 23 Cal. 481). ■i Atchison v. Peterson, 87 U. S. .507, 22 L. ed. 414; Bear River etc. Co. V. New York etc. Co., 8 Cal. 327, 68 Am. Dec. 325; Butte Canal etc. Co. V. Vaughn, 11 Cal. 143, 70 Am. Dec. 769; Phoenix etc. Co. V. Fletcher, 23 Cal. 481; Hill v. Smith, 27 Cal. 476. g§ 154,155 PROTECTION OF THE RIGHT. 223 necessarily whether his use and enjoyment of the water to the extent of his original appropriation have been im- paired by the acts of the defendant. This is substan- tially the rule laid down in ITill v. Smith, 27 Cal. 483; Yale, Mines, 194."* § 154. Later Grants of Land are All Subject to Prior Ap- propriations. — The passin<,r of public land into private ownership does not free it of water rights or rights to ditches acquired while the land was public. Section 2340, Revised Statutes of the United States, provides: "All patents granted, or pre-emption or homesteads allowed, shall be subject to any vested and accrued water rights, or rights to ditches and reservoirs used in con- nection with such water rights, as may have been ac- quired under or recognized by the preceding section" (viz., section 2339, affirming the doctrine of appropria- tion). The appropriation will prevail against later ri- parian rights.^ B. INJURY TO QUANTITY. § 155. General Rules. — Later comers must leave un- diminished the quantity of flow to which we have al- ready seen the appropriator is entitled ; in general, the amount stated in his notice, or permit, or enough to fill his ditch if less than that, or the amount he actually uses, if less than both the former. A diminution of the quantity approin-iated need not be the result of actual diversion; for example, if sawdust from a sawmill clogs up one's ditch so as to diminish the flow, it is actionable.'^ Or if the velocity is diminished by a dam preventing the 4 Per Mr. .lustico Stephen FicM in Atchison v. Peterson, S7 U. S. 507, 22 L. ed. 414. •"> Ante, sees. 16, .33. «5 Phoenix Water Co. v. Fleteher. 23 Cal. 481. 224 WATER EIGHTS lA^ THE WESTERN STATES. §§ 156, 157 workini^ of a mining claim by a prior appropriator, or causing irregularity of flow." Should the interference be the result of increase or acceleration of flow it would also in some cases be actionable, but a discussion of the law of drainage and flooding is foreign to our present purpose. § 156. Surplus. — The appropriator cannot complain if the surplus over the amount he has appropriated is taken by subsequent appropriators or subsequent ripar- ian owners.^ We repeat here only that the surplus may consist in the use at certain times (where periodical appropriations), or the surplus" in Amount, over prior appropriations above or below.^ i< 157. Injury from Diversion by Percolation. — The rule formerly applied to percolating water was that its move- ments were too indefinite and precarious to found any right upon distinct in itself; the doctrine resting upon T Phoenix Water Co. v. Fletcher, 23 Cal. 481; Natoma etc. Co. v. McCoy, 23 Cal. 490; Stone v. Bumpers, 46 Cal. 218; Parker v. Gregg, 136 Cal. 413, 69 Pac. 22. See, also, De Baker v. Southern Cal. Ry. Co., 106 Cal. 257, 46 Am. St. Rep. 237, 39 Pac. 610. 8 Kelly V. Natoma etc. Co., 6 Cal. 105; Brown v. Smith, 10 Cal. 510; Ortman v. Dixon, 13 Cal. 33; McDonald v. Bear River etc. Co., 13 Cal. 220; McKinney v. Smith, 21 Cal. 374; American Co. v. Brad- ford, 27 Cal. 360; Nevada etc. Co. v. Kidd, 37 Cal. 282, at 313; Hig- gins V. Barker, 42 Cal. 233; Smith v. O'Hara, 43 Cal. 371; Stein Canal Co. v. Kern Island etc. Co., 53 Ctil. 563; Hillman v. Newin^- ton, 57 Cal. 56; Brown v. Mullin, 65 Cal. 80, 3 Pac. 99; Junkans v. Bergin, 67 Cal. 267, 7 Pac. 684; Edgar v. Stevenson, 70 Cal. 286, 11 Pac. 704; Ball v. Kehl, 87 Cal. 505, 25 Pa&. 679; Barrows v. Fox, 98 Cal. 63, 32 Pac. 811; Santa Paula etc. Works v. Peralta, 113 Cal. 38, 45 Pac. 168; Senior v. Anderson, 115 Cal. 496, 47 Pac. 454; Smith v. Hawkins, 120 Cal. 86, 52 Pac. 139; Senior v. Anderson, 130 Cal. 290, 62 Pac, 563. See ante, sec. 29 — successive appropriations. 9 Ante, sec. 30. See Natoma etc. Co. v. Hancock, 101 Cal. 42, 31 Pac. 112, 3'5 Pac. 334; Faulkner v. Rondoni, 104 Cal. 140, 37 Pac. 883. See Famham on Waters, p. 2085. § 153 PROTECTION OF THE RIGHT. 225 the famous English cases of Acton v. BlundelP*^ and Chasemore v. Richards.^ ^ Neither ownership of it aside from the land was recognized, nor any wrongfulness in withdrawing, by percolation, water from a watercourse, which was considered damnum absque injuria}^ We have already seen that California has adopted a new rule opposed to this, and the tendency of other Western States is the same. Underground water of all kinds may in California be appropriated ; it is proper here to con- sider the other part of the rule as concerns appropria- tion ; that is, how far a loss caused by percolation away from appropriated water is a wrongful diversion; a damnum atqiw injuria; a damage the law will now think proper to look into. § 158. Diversion by Percolation Under the Recent Deci- sions. — On their face the California decisions appear to establish the rule that a diversion caused by percolation is no different from a diversion of any other kind, and so always wrongful where there is a material injury to a prior right by appropriation of water, whether the damage is to a surface right or an underground one. On their face the decisions seem to establish the rule that the appropriator of water in surface streams, springs, wells, etc., of which he is thus deprived, may al- ways maintain an action for the diversion. The lead- ing case of Katz v. Walkinshaw^^ held that a diversion by percolation of water from a well was wrongful. Though the right to the well was not one of appropria- tion in that case, yet the court declared that the prin- ciple was the same, however the right to the well was 10 12 Mees. & W. 324. n 7 H. L. Cas. 349. 12 Chasemore v. Richards, s^tpra. 13 141 Cal. 116. 99 Am. St. Rep. 35, 70 Pac. 663. 74 Pac. 766; and cf. Sullivan v. Northern Spg. Min. Co., 11 Utah, 438. Water Rights— 15 226 WATER EIGHTS IN THE WESTERN STATES. § 158 acquired. A diversion of the percolating water appro- priated as feeding a spring — that is of the percolations supplying the spring — has been held unla^N'ful.^"^ A tunnel diverting the percolations which supply the source of an appropriated stream, before they reach the stream, has been held unlawful ;^^ and to withdraw, by a seepage tunnel, the sub-flow of an appropriated stream, being equivalent to a seepage fromi the stream itself, is all the more unlawful. ^^ Another important case may be suggested; that is, the withdrawal of water by percolation may dry up the neighboring soil itself. In the Nineteenth Annual Re- port of the United States Geological Survey,^ "^ in an elaborate investigation of the movements of ground water, it is said : "In another part of this paper it was shown, from direct observations that the withdrawal of a comparatively small amount of water from a soil al- ready saturated is sufficient to produce a marked change in the level of the ground water, and hence to cause marked change in the level of waters in wells, and in the height of the ground water in sections where crops depend on water which is derived from the under-flow by natural sub-irrigation." If an action can be main- tained against one for draining a well by percolation, it is only a small step to holding him liable for drain- ing the soil of the water needed for crops in "natural sub-irrigation." We have already noticed the doubt whether the doctrine of Katz v. Walkinshaw will not 14 In Cohen v. La Canada etc. Water Co., 142 Cal. 437, 76 Pac. 47. 15 In McClintock v. Hudson, 141 Cal. 275, 74 Pac. 849; compare Strait V. Brown, '16 Nev. 317, 40 Am. Rep. 497. 16 Ibid; Los Angeles v. Pomeroy, 124 Cal. 597, 57 Pac. 585; Vine- land V. Azusa etc. Co., 126 Cal. 486, 58 Pac. 1057, 46 L. R. A. 820; Montecito etc. Co. v. Santa Barbara, 144 Cal, 578, 77 Pac. 1113. 17 Part II, page 274. § 159 PKOTECTION OF THE EIGHT. 227 be limited to streams, springs, and to such ground water only as exists in a quasi subterranean reservoir, in which case the diversion of the under-flow needed in natural sub-irrigation might still be treated as damnum absque injuria; but, as before noticed, the later cases tend against limiting the doctrine to cases where such subterranean reservoirs exist.^^ When the right is based on appropriation simply (as distinguished from the correlative rights of landowners) the water may be used on distant lands. ^^ § 159. The Question of Motive. — Mr. Justice Temple's opinion in Katz v. Walkinshaw ^^ turns on the motive actuating the person who diverts the water by percola- tion, and would give no action against him where done "in the ordinary use of one's land." The learned judge says:-^ "In Acton v. Blundell, 12 Mees. & W. 324, as has been said, the working of a mine upon an adjoining- estate drained certain springs of plaintiff's land. It would have been sufficient to defeat plaintiff's action to have said that the working of a coal mine in a proper way is a reasonable use of land, and that it was without malice or intent to injure plaintiff." "The proprietor may make a reasonable use of his own land, although in so doing he obstructs or changes the percolation of water to or from his neighbor's land."^^ "The peculiar nature of the property which enables one to take it by drainage does not justify the taking save in the usual and reasonable use of his own land — in other words, for the proper use and betterment of his own prop- is Ante, sec. 79. 19 Katz V. Walkinshaw, supra (dictum). 20 141 Cal. 116, 99 Am. St. Kep. 35, 70 Pac. 663, 74 Pac. 766. 21 At page 142. 22 At page 146. 228 WATER RIGHTS IN THE WESTERN STATES. § 159 erty/'^ Such also, was the rule of the Civil Law, as quoted in the opinion (virtually dissenting) of Baron Parke in Chasemore v. Riehards.^^ If this view prevails, the diversion of appropriated water through the agency of percolation would not be actionable if done solely from the proper motive of making the ordinary use of one's own land in mining, grading, etc. Whether actionable would turn upon the motive with which done, being prima facie wrongful, but a proper motive being good matter in excuse.^" On the other hand there is the oft-repeated statement that motive has no place in the common law, and that the motive with which an act is done is immaterial.^^ Moreover, in the case of Hanson v. McCue,^" the leading California case on the subject of percolating water fol- lowing the English rule, there were several dicta that the motive would be looked into, but the court in its final opinion in Katz v. Walkinshaw, refused to accept this ground of distinction.^^ Further, the actual de- 23 At page 147. 24 7 H. L. Gas. 349. 25 The case of Katz v. Walkinshaw is cited to this effect in an article (by James Barr Ames) in 18 Harvard Law Review, 415. The matter has recently come before the courts of other States, ■and a similar view appears to be there taken. (99 Am. St. Rep. <66, note; 64 L. R. A. 255, note; 18 Harvard Law Review, 415, supra.) This must be distingnished from the rule that the diversion is prima facie rightful, and that malice makes it unlawful — a view that prevails in some States (see 19 L. R. A. 92, note) and is much less 31 departure from the old rule. A review of the cases on underground water has been published by the United States Geological Survey, Water Supply Paper, 122. 26 Allen V. Flood, [1898]' App. Cas. 1; Chasemore v. Richards, 7 H. L. Cas. 349; Fisher v. Feigh, 137 Cal. 39, 92 Am. St. Rep. 77, 69 Pac. 618, 59 L. R. A. 333. 27 42 Cal. 303, 10 Am. Rep. 299. 28 The following passages from Hanson v. McCue, 42 Cal. 303, 10 Am. Rep. 299, are hence worth quoting. They show that the court fliere really favored the motive rule, and as the case was repudiated § 159 PROTECTION OP THE RIGHT. 229 cisions since Katz v. Walkinshaw have not discussed the question of motive in this connection, and on their face in Katz v. "Walkinshaw, that rule would seem to have been repudi- ated also: "The question then came to this: One who is owner of the free- hold — usijue ud infvrnos — digging in the soil for the lawful pur- pose of his own profit, and not actuated by the malicious intent to wantonly deprive the plaintiff of the flow of water, is, at the in- stance of the latter, enjoined from so digging, because he will thereby divert the waters which percolate the soil from the spring from which the artificial watercourse, leads to the lands of the plain- tiff." (Page 309.) "The defendant would have had the right to dig upon his own land for any purpose not proceeding from mere malice, even though he had thereby diverted the percolations from a spring on the plain- tiff's premises. If the plaintiff was the owner of the Dixon Spring, with a consequent right to the use of all its water, the defend- ant would have the clear right to dig upon his adjoining land, for any useful purpose, notwithstanding he might thereby divert the percolations, and thus destroy the spring. He would not be allowed to do it from mere wantonness and malieV; but the owner of the soil is entitled to use the percolations through it, for any purpose which he may deem beneficial, or may divert them in another direction, in the prosecution of any work on his own land which he may consider advantageous to him. I deem it unnecessary to inquire into the reason of the ruling, which, however, is fully stated in the care- fully considered case already cited, and the numerous authorities, therein referred to. I do not understand plaintiff's counsel to deny that the defendant might lawfully divert the percolations from the spring, provided it was only incidentally done in the prose- cution of an independent or collateral work on his own premises; but he claims that the sole object of the tunnnel is to cut off the supply of the water, and thus destroy the spring, which he insists the de- fendant has no right to do by a work expressly prosecuted for that especial purpose. But the findings show that the object of the tun- nel is to collect the water for a commercial purpose, to wit: to furnish the neighboring village of San Rafael a supply of fresh water — and this certainly is a proper and useful purpose. If the defendant has the right to divert the percolations by digging a ditch for the mere purpose of drainage, or by sinking a well essential to the enjoyment of his property, I can perceive no reason why he may not accomplish the same result for any other purpose which he may deem advantageous to him; I think he may do it for any purpose which is not purely malicious." (Page 311.) 230 WATER RIGHTS IN THE WESTERN STATES. § 159 appear to consider the diversion by percolation as no different from a direct diversion of a stream hj a ditch, and always actionable, whatever the motive, if the right of another as appropriator or his correlative right as landowner, is damaged. Finally, in Katz v. Walkin- shaw, in the final opinion (given by Mr. Justice Shaw), discussing^® the case of Cross v. Kitts,^*^ the court con- siders that case as deciding that a miner cannot cut off the percolations which feed a stream, though done in the legitimate work of mining his own land, and ap- proves Cross V. Kitts on that ground. That the motive with which the water is diverted by percolation will not be looked into has, then, strong support under the recent cases. In Copper etc. Co. v. Wabash etc. Co.^^ it was held that mining in the ordinary way is no defense where the mine shaft withdrew, by percolation, the sub-flow of a stream. If the recent cases do not establish the rule that mo- tive will not be looked into, they at least establish the following: If motive is looked into, the diversion of water for one's own use and application, as distin- guished from the necessity of drainage, is not a proper motive if thereby the right vested in another as appro- priator is damaged.^^ 29 At page 129. 30 69 Cal. 217, 58 Am. Rep. 558, 10 Pae. 409. 31 C. C. U. S., S. Dist. Cal., 114 Fed. 991. 32 An interesting feature of these development works is the con- stant strife existing in Southern California between the various tunnel and well owners. For instance, the owner of a certain piece of prop- erty discovered by a tunnel the presence of a considerable body of water on his land; his neighbor to the south, whose land is at a lower elevation, drained the first tunnel by digging another on a lower grade and extending it to his northern property line. This has been done repeatedly, in some cases the water having been so diverted by two or three owners in succession. § 160 PROTECTION OF THE RIGHT. 231 § 160. Importance in Mining Regions. — This is of j^reat importance to miners, Itec-ause their works are likely to drain Avells and springs and even streams in the neighborhood. As an eminent authority says : "In sink- ing a shaft through permeable ground it is, of course, necessary to lift contiuucnisly the ground water. The water level thus acquires an inclination towards the shaft, which may thus receive not only the flow of the immediate vicinity, but even also that of neighboring river systems. "^^ If the rule that the motive actuating one who diverts water by percolation will not be looked into prevails, then the principle of Katz v. Walkinshaw^^ would make the miner an insurer to agriculturists against damage to crops, etc., from dessication (excepting only the re- sults in extraordinarily dry seasons — that is, from a '^vis majo?^^ or "act of God").^^ 33 Posepny on Ore Deposits (American Institute Mining Engineers), page 19. The following is an example of what is sometimes necessary in mining, and applies to other mining as well as coal mining: ' ' The importance of the water problem in connection with anthra- cite mining is well shown by the fact that there are a number of pumping stations having capacities of from 5,000,000 to 10,000,000 gallons per day. The Gilberton water-shaft of the Philadelphia & Reading Co. is about 1,000 feet deep and is equipped with hoisting buckets. The capacity of the plant is 7,000,000 gallons per day, and it is designed to drain the entire basin operated from the Draper and Gilbertson collieries": Transactions of the American Institute of Mining Engineers, vol. 34, p. 523. 3 4 141 Cal. 116, 99 Am. St. Rep. 35, 70 Pac. 663, 74 Pac, 766. 35 This result is noticed in Acton v. Blundell, 12 Mees. & W. 324, which considered it a strong reason for holding just the opposite of Katz \. Walkinshaw. The court, in Acton v. Blundell, said: "In the case of the running stream, the owner of the soil merely transmits the water over its surface; he receives as much from his higher neighbor as he sen when the stream, overflowed, covered agricultural ground. The court there said that the long distance made no more difference than if the debris had been dumi)ed on the fields after being carried there by carts or cars. As a result of these cases on hydraulic mining, Con- gress prohibited it in California, making it a misde- meanor, unless under pennission from the "Debris Com- mission."^"^ This prohibition is made to extend to what- ever the words "hydraulic mining" or "mining by tlie hydraulic process" meant in 1893 when the act was passed. Whether it would prohibit such things as working over tailings or dumps or other artificial banks of earth by water under pressure, is not clear,^^ § 164. Priority. — We have been considering the ques- tion from the view of injury to the prior appropriator. The principles on which the law of appropriation rest should apply with equal force where the case is re- vei-sed, and the injury is to the subsequent claimant. If the prior claimant appropriated the stream for the purpose of depositing tailings, sawdust, or other ma- terial in it, and so used the water at the time the sub- sequent claimant arrived, the continuance of the pol- lution of the stream should be lawful, as one of the characteristics in which the law of appropriation is a departure from the common law of riparian rights. It 57 tl Stats, at Largo, 507. 58 If emphasis is laid on the words "hydraulic process," as in Lindley on Mines, section 848 et seq., such work would clearly be within the act. If emphasis is laid on the word "mining," it might, peThaps, not. The eflFect of the act, and the question of pollution 85 applied to mining are discussed at length in Lindley on Mines, 2d ed., sec. 852 et seq.; Pomeroy on Riparian Rights, sec. 76. 238 WATEK EIGHTS IN THE WESTEEN STATES. § 164 was so held in Sims v. Smitli.^^ It is similar in prin- ciple to O'Keiffe v. Cunningham,^" where it is said that tailings can be deposited on land by a prior appropria- tion {i. e., location) of the land for that purpose, and Jacob V. Day,^^ where it was held that tailings can be "rushed" across land in a ditch, if the ditch was on the land while publiCj prior in time to the title of the occupant of the land. There is no distinction in prin- ciple between the right acquired by priority to deposit tailings on land, rush them in a ditch, or deposit them in streams. They are equally rights to which exclusive use may be acquired by priority on public lands. How far priority will sanction the pollution is, how- ever, left somewhat in doubt by the "Debris Cases," holding that hydraulic mining was a public nuisance in those cases, and that the right to continue a public nuisance could not be maintained under a claim of either priority or prescription.^- Following this, pol- lution has been declared to be a public nuisance.^^ In People V. Elk River etc. Co., cited in the preceding note, pollution of a stream was said to be a public nuisance if it interferes with use by a considerable number of persons on the banks of a stream though non-navigable. In Suffolk etc. Co. v. San Miguel etc. Co.^^ tailings from a stamp-mill were enjoined at the suit of a power company, though to some extent at least the stamp- 59 7 Cal. 148, 68 Am. Dec. 233. 60 9 Cal. 589. 61 111 Cal. 571, 44 Pae. 243. 62 See cases cited above and People v. Gold Run etc. Co., 66 Cal. 138, 56 Am. Rep. 80, 4 Pac. 1152; and Woodruff v. North Bloomfield Co., 18 Fed. 801, 9 Saw. 441, especially. 63 In Conrad v. Arrowhead etc. Hotel Co., 103 Cal. 399, 37 Pac. 386; People v. Elk Eiver etc. Co., 107 Cal. 214, 48 Am. St. Rep. 121, 40 Pac. 486 (a dairy); People v. Elk River etc. Co., 107 Cal. 221, 48 Am. St. Rep. 125, 40 Pac. 531 (a sawmill). 64 9 Colo. App. 407, 48 Pac. 828. § 165 PROTECTION OF THE RIGHT. 239 mill had discharged tailings into the stream before the power company began. (The number of stamps there- after, however, had been increased.) In Conrad v. Arrowhead etc. Hotel Co.^'^ where the pollution consisted in refuse from a hotel, the court states the rule as follows : "Locators and appropriators of the waters of a stream have no rights antecedent to the date of their location. If others have, prior to their location, decreased the quantity of the water flowing in such streams, or caused a deterioration of its quality, the subsequent locator cannot complain. "Familiar examples of the application of this rule as between appropriators are of frequent occurrence in the mining regions of this State, where water is di- verted from flowing streams, upon which mining has destroyed the purity of the water. In such cases the appropriator takes the water with his eyes open — takes it as he finds it, and as to him the like continued de- terioration is damnum absque injuria/'^^ D. PROCEDURE. ^ 165. Who can Sue.— The owner of the water right has the usual recourse to the courts, as he has in the protec- tion of any other property.^" A tenant having the right 65 103 Cal. 399, 37 Pac. 386. 66 Concerning the pollution of underground waters, reference may be made to the following eases: Kinnaird v. Standard Oil Co., 89 Ky. 468, 25 Am. St. Rep. 545, 12 S. W. 937, 7 L. R. A. 451; Ballard V. Tomlinson, 29 Ch. D. 115, 122, 126; Sherman v. Fall River etc. Co., 5 Allen (Mass), 213; Alston v. Grant, 3 El. & B. 128; Turner v. Alir- field, 34 Bea,v. 390; Womersley v. Church, 17 L. T., N. S., 190; Clark V. Lawrence, 6 Jones Eq. 83,78 Am. Dec. 241; Greencastle v. Hazelett, 23 Ind. 186; Wahle v. Reinbach, 76 111. 322, 326; Upjohn v. Rich- land Township, 46 Mich. 549, 41 Am. St. Rep. 178, 9 N. W. 845; Brown V. Illius, 27 Conn. 84, 71 Am. Dec. 49; Dillon v. Acme Oil Co., 49 Hun (N. Y.), 565, 2 N. Y. Supp. 289; Barnard v. Shirley, 135 Ind. 547, 41 Am. St. Rep. 4.54, 34 N. E. 600, 35 N. E. 117, 24 L.' R. A. 568. 67 See Long on Irrigation, sec. 110. 240 WATEE EIGHTS IN THE WESTEEN STATES. § 166 of possession may sue a stranger, the injunction ob- tained becoming inoperative at the end of the lease.®^ The landlord can sue a stranger for diversion, though tenant is in possession.^^ One tenant in common can sue his co-tenant for diversion, and in California, is en- titled to treble damages."^^ One tenant in common may alone sue a stranger for diversion. ^^ On partition suit between tenants in common, there can only be a sale.'^^ The question whether the appropriation of water in- terferes with the rights of other appropriators cannot be raised by parties who are strangers to such other ap- propriators not parties to the action.'^^* § 166. Where Suit can be Brought. — A diversion oper- ates upon the whole of a ditch and is an injury to every part of it. Consequently an action can be brought in Tulare County for a diversion at the head of the ditch in Fresno County, the ditch lying in both counties. ''^^ Likewise of a ditch in two States; a diversion in Mon- tana is actionable in Wyoming into which State the ditch runs.^^ 68 Heilbron v. Fowler etc. Canal Co., 75 Cal. 426, 7 Am. St. Eep. 183, 17 Pac. 535. 69 Heilbron v. Last Chance Water etc. Co., 75 Cal. 117, 17 Pac. 65. 70 Cal. Stats. 1889, p. 202. Compare Civ. Code, sees. 842, 843. See Pomeroy on Eiparian Eights, sec. 59, and Farnham on Waters, sec. 504. 71 Eodgers v. Pitt, 129 Fed. 932. 72 Ante, sec. 49; infra, sec. 169. 72a Gutierres v. Albuquerque etc. Co., 188 U. S. 545; Senior v. Anderson, 138 Cal. 716, 72 Pac. 349; Utt v. Frey, 106 Cal. 396, 39 Pac. 807. 73 Lower Kings Eiver etc. Co. v. Kings Eiver etc. Co., 60 Cal. 408. 74 Ant(\ sec. 67; Willey v. Decker, 11 Wyo. 496, 100 Am. St. Eep. 939, 73 Pac. 210; citing and relying on Lower Kings Eiver etc. Co. V. Kings etc. Co. § 167 PROTECTION OF THE RIGHT. 241 A suit to determine priority between appropriators does not involve a Federal question merely bef-ause it is concerned \yith section 2339 of the Revised Statutes of the United States.'^^ A State engap:inrt ion of inconvenience as to cause re- fusal of an injunction does not depend entirely on the difference as measured in money. Plaintiff's right is not measured in money damage. Tlie difference must go to the balance, not of damages, but of the value of the substantive right. It is not enough for defendant to say that, admitting plaintiff's right to be a substantial one, defendant in invading it does so because he cannot otherwise work his mine, and will take all precauticm to keep the money damage small. That is no defense to an injunction as the court held in one case,^* saying: "But even had the defendants, after having admitted the property rights of plaintiffs in their ditch, as al- leged in their complaint, admitted their intention to wash away the ground upon which it was constructed, as alleged by plaintiffs, and alleged in justification of such purpose their design to substitute in place of so much of plaintiff's ditch as they should wash away, a Hume or metal pipe for conducting the water for the use of plaintiffs, and that such flume or pipe would answer plaintiffs' purposes as well as the ditch, with a prayer that the court, by its judgment, and decree, authorize theiu to consummate their designs, upon their filing a bond payable to plaintiffs, conditioned to keep such flume or metal pipe in repair until plaintiffs' claims should be worked out, I know of no principle of law or power in a court of equity to justify or authorize such an invasion of the property rights of one private party to serve the wishes, convenience, or necessities of another private party. Such a princii)le, if once adopted by judicial tribunals ui)on ground of necessity in view of the peculiar relations and character of pri- vate property rights of miners on the public domain, would readily be invoked as applicable to other property 88 Gregory v. Nelson, 41 Cal. L'78, at p. 289. 244 WATElv Rights in the WESTEEN states. § 167 rights, and its practical application would result in a system of judicial condemnation of the property of one citizen to answer an assumed paramount necessity or convenience of another citizen. "It is the duty of courts to protect a party in the enjoyment of his private property, not to license a trespass upon such property or to compel the owner to exchange the same for other property to answer private purposes or necessities."^^ The refusal of an injunction because of the rule con- cerning the balance of convenience is illustrated in the following case. A mining company was depositing tail- ings upon land below its mill. For the purpose of speculation, plaintiff bought up this land, and asked an injunction. That was refused on the ground that it would mean ruin to the mining company, and plaintiff had bought the land merely with a view to litigation.^** It was held in another case that where, in an action to recover damages and to enjoin defendant from main- taining a ditch upon plaintiff's land, it appears that the land was of little value; that the injury to the land was not real; that the damages were merely nominal; that defendant was not insolvent; and that plaintiff's remedy at law was adequate, then the court did not err in refusing to grant an injunction.^^ The rule as to the balance of convenience, or com- parative hardship, is more favored in refusing a pre- liminary injunction than a permanent one.^^ 89 See Pomeroy ou Riparian Eights, sec. 67; Weiss v. Oregon etc. Co., 13 Or. 496, 11 Pae. 255; High on Injunction, sec. 795; Woodruff V. North Bloomfield etc. Co., 18 Fed. 753, 9 Saw. 441. 00 Edwards v. Allouez Co., 38 Mich. 46, 31 Am. Eep. 301. 91 Hoye V. Sweetman, 19 Nev. 376, 12 Pac. o04. 02 California etc. Co. v. Enterprise etc. Co. (C. C. Southern Dist. Cal.), 127 Fed. 741. § 168 PROTECTION OF THE RIGHT. 245 A mandatory injunction, ordering the removal of an obstruction from the stream, may be granted.^^ A mandatory injunction to compel the removal of dams which have wrongfully diverted water onto plain- tiff's prop<'rty, the etfect of which will be to destroy trees and cut gulches, is held^^ to be properly awarded* although plaintiff has not established his right to dam- ages by a verdict of jury or finding of court. "But whether, ui)on a petition or bill asserting that his rights have l)een invaded, a court of equity will inter- fere to restrain the acts of the party complained of, will depend upon the character and extent of the injury alleged ; whether it be irremediable in its nature ; whether an action at law would afford adequate rem- edy; whether the parties are able to respond for the damages r(^ulting from the injury, and other consid- erations which ordinarily govern a court of equity in the exercise of its preventive process of injunction. "^^ § 168. Actions at Law. — Though every injury to a water right is not a case for an injunction, it does give a right to recover money damages at law, being in the nature of a nuisance.^^ In a suit for damages, the damage must not be alleged as for the value of water at so much per inch or gallon, but for the damage to plaintiff's undertaking, conseqfuent to the loss of the use of the water. **'^ For diversion of water from an artifi- 9;{ Nicholson v. Getehell, 96 Cal. 394, 31 Pac. 265; Johnson v, Su- perior Court, 65 Cal. 567, 4 Pae. 576. 94 In Allen v. Stowell, 145 Cal. 666, 79 Pac. 371, 68 L. R. A. 223. 95 Atchison v. Peterson, 87 V. S. 507, 22 L. ed. 414, »« Parke v. Kilham, 8 Cal. 77, 68 Am. Dec. 310; Tuolumne etc. Co. V. Chapman, 8 Cal. 392; McCarthy v. Gaston etc. Co., 144 Cal. 542, 78 Pac. 7. »7 Parks etc. Co. v. Hoyt, 57 Cal. 44. 246 WATER RIGHTS IN THE WESTERN STATES. § 169 cial watercourse, the water being personalty, the rule would seem the other way.^^ § 169. Actions to Quiet Title. — Many suits have been allowed to quiet title to water rights, as to other prop- erty.^^ In Katz v. Walkinshaw,^^^ it was said, in pass- ing, that a suit will lie by a landowner to have his right to percolating water declared against appropriat- ors, though he has sunk no well, or otherwise made use of it; but that will probably be a matter for further consideration if the case ever arises. If there are several appropriators or other claimants on the same stream, a suit may be brought to have the rights of all settled and determined. In such a case all parties on the stream must be brought into court,^*^^ The court must then make a specific finding of the amount to which each is entitled. ^°- "No subject is, perhaps, so prolific of controversies as the use of water by different claimants for irrigation purposes, and a decree concerning it should be as cer- tain as the language can make it."^*^^ This apportion- ment may be in time as well as amount, giving each the use of the whole for so many days or hours.^*'^ In 98 Supra, sec. 131. 99 E. g., Peregoy v. Sellick, 79 Cal. 568, 21 Pac. 966; Senior v. An- derson, 130 Cal. 290, 62 Pac. 563. 100 141 Cal. 116, 99 Am. roperty. In Mechanics' Foundry v. Ryall,^^^ the court says this extends to a "molliter manus imposuit/" which, translated from the Latin, may be taken, "A gentle use of one's fists." In the following case trespassers entered upon another's land to build a ditch and interfere with water rights and were driven off; whereupon they brought suit. The court says: "One of the grievances of which the plaintiffs com- plain is that they were ejected from the possession of certain ground occupied by them for the purpose of con- structing a dam and ditch. The object was to divert the water away from the defendants, and we think the plain- tiffs have no right to complain of the means adopted to defeat this object. As against the defendants the diver- sion would have been illegal and we regard their action in the premises as a proper and legitimate mode of averting the injurious consequences. "^^o One may go upon another's land to remove obstruc- tions placed there without being held liable in tres- pass.^ ^^ The subsequent appropriators may require the prior one to keep up his dam, or may themselves maintain the dam as they found it at the time of tlieir location.^ -^ 118 Van Bibber v. Hilton, 84 Cal. 585, 24 Pac. 308, 598. 119 75 Cal. 601, 17 Pac. 703. 120 Butte etc. Co. v. Morgan, 19 Cal. 609, at 616. See, also, Mg- Carty v. Fremont, 23 Cal. 196. 121 Ennor v. Raine (Nev.), 74 Pac. 1. 122 Lobdell V. Simpson, 2 Nev. 274, 90 Am. Dec. 537. 250 WATER EIGHTS IN THE WESTERN STATES. § 172 § 172. Crimes.— Under the Penal Code of California, there are the following crimes peculiar to this subject : Under section 347, poisoning water in any spring, well, or reservoir, is a State's prison offense, and under sec- tion 374, fouling the water by putting offal or filth into any stream, pond, lake or reservoir, is a misdemeanor. An example of this is herding a band of sheep daily to a stream which they defile. ^^^ Under section 499, stealing water from flumes, pipes, etc., is a misde- meanor. Under sections 592 and 607, destroying or in- juring flumes, reservoirs, etc., is a misdemeanor. Main- taining appliances injurious to fish is a misdemeanor.^ ^^ These crimes do not exclude the equitable jurisdic- tion to restrain the same acts as nuisances in a civil suit.125 Under the recent Irrigation Codes of the arid States there are many criminal provisions in the nature of police regulations ; such as waste of water, interference with headgates or measuring devices, or obstruction of officials in their work.^^^ 123 People V. Borda, 105 Cal. 6S6, 38 Pae. 1110. '124 Pen. Code, 629. 125 People V. Truckee Lumber Co., 116 Cal. 397, 58 Am. St. Eep. 183, 48 Pac. 374, 39 L. R. A. 581; Spring Valley etc. Works v. Fifield, 136 Cal. 14, 68 Pac. 108. 126 See Appendix and infra, sec. 177. § 173 SUPERVISION OF APPROPRIATOES. 251 CHAPTER X. SUPERVISTOX OF APPPOPPIATOES— IX STATES ADOPTING IRRIGATIOX CODES. § 173. Introductory. § 174. Supervision of State. § 175. Intermediate subdivisions. § 176. Primary subdivisions. § 177. Police regulations. § 173. All waters are, in States adopting irrigation codes, declared subject to the control of the State for the benefit of the people, though the form of words dif- fers : "Dedicated to the use of the people" ;^ or "Water for irrigation is a natural want'' ; and the works there- for are "works of internal improvement,-'- or "Are sub- ject to regulation and control by the State."^ "The use of water for a beneficial purpose is a public use."* In the Idaho constitution it is declared that the use of water is a public use and subject to the regulation and control of the State.^ Similar provisions exist in most States. "In the progress of our legislation in respect to the use of water for irrigation and other beneficial pur- poses, the significant feature of the changes and addi- tions from time to time has been the principle of cen- tralized public control and regulation. One can hardly 1 Colo. Const., art. 16, sec. 5. 2 Neb. Comp. Stats. 1903, 6456, 6473. 3 Nevada Comp. Laws, 1900, sec. 354. 4 Utah Stats. 1905, c. 108, sec. 50; and see Wyo. Const., art. 1, sec. 13; and declarations of State ownership, ante, sec. 25. 5 Idaho Const., art. 15, sec. 1. 252 WATEE EIGHTS IN THE WESTEEN STATES. § 174 fail to be impressed with the gradual tendency ex- hibited in the various acts toward the greater effective- ness of public supervision."^ § 174. Supervision of State. — The general supervision over the whole State is placed either in a special board, or in the State Engineer. For example, it is in a State Board of Irrigation in Nebraska,'^ consisting of the gov- ernor, attorney general, and commissioner of land;^ a State Board of Irrigation in Nevada, consisting of the governor, attorney general and surveyor general f in a State Board of Control in Wyoming, consisting of a State engineer and division superintendents.^^ It is in the State Engineer in Colorado^ ^ and Utah.^^ There is in Idaho a State Board of Irrigation consisting of the State Engineer and the three water commissioners;^^ but the functions of this board seem less than in the other States where boards are constituted. They meet once a year, no session exceeding five days.^^ In exercising this general supervision, general control may be exercised over all the waters, surveys and in- spections made, and general rules and regulations estab- lished, and the administration of priorities (as else- where determined) provided for. Where the general control is in a board, an executive officer is also provided having general powers to see to the execution of the orders of the board. This is the 6 Farm Inv. Co. v. Carpenter, 9 Wyo. 110, 87 Am. St. Eep. 918, 61 Pac. 258, 50 L. E. A. 747. 7 Comp. Stats. 1903, sec. 6412. 8 Ibid. 9 Stats. 1901, p. 72. 10 Wyo. Const., art. 8, see. 2. 11 3 M. A. S., 1905 ed., 2447h, 2286c.; M. A. S. 2459. 12 Stats. 1905, c. 108, sees. 1-3. 13 Infra. 14 Stats. 1903, p. 223, sec. 22. SS 175,176 SUPERVISION OF APPROPRIATORS. 25S State Engineer in Nevada ;^^ in Nebraska it is the secre- tary of the board ;^^ in Wyoming it is the State En- gineer, who is the president of the Board of Control.^ '^ § 175. Intermediate Subdivisions. — The whole State is usually divided into intermediate subdivisions. These are called water or irrigation divisions and an executive oflficer is provided for each division. For example, in Colorado they are called irrigation divisions, of which there are five, and the executive of each is called "irriga- tion division engineer." ^■*' In Nebraska there are two, called "water divisions,'' and the executive officer for ■each is called "under-secretary for the division.''^ ^ In Utah there are five, called "water divisions," and the executive officer for each is called "division superin- tendent."^" In Wyoming there are four, called "water divisions," and the executive for each, called "division superintendent. "21 The State in Idaho is, by the stat- ute, divided into three water divisions, numbered 1, 2, 3, with one "water commissioner" for each division, to hold office for six years. -^ The division executive has general control over the waters within his division, similar to that of the State Board or State Engineer over the State, and may make rules and regulations for his division, subject to the •control of the higher authorities and appeal to them. § 176. Primary Subdivisions. — The direct primary ad- ministration rests in a further and subordinate subdivi- 15 Stats. 1903, p. 18, sec. 5. 16 Comp. Stats. 1903, sec. 6425. 17 Wyo. Const., art. 8, sec. 5. 18 3 M. A. S., 1905 ed., 2440 et seq. 19 Comp. Stats. 1903, sees. 6409, 6419 et seq. 20 Stats. 1905, c. 108, sees. 26-30. 21 Const., art. 8, sec. 4; Rev. Slats., 848. 22 Stats, supra, sees, 13-18. 254 WATER EIGHTS IN THE WESTERN STATES. § 176 sion of the divisions into districts, with an executive officer for each district. Thus, in Colorado these dis- tricts are called "water districts" (called "unincorpo- rated," to distinguish them from irrigation districts, based on the Wright Act of California). There are sixtj^- eight of these established by statute, according to the lo- cations of water supplies.^^ The executive for each is called "water commissioner. "^^ In Nebraska the State Board of Irrigation may create water districts as neces- sity arises, and the executive officer thereof is called "un- der-assistant for the district. "^^ In Nevada, the State Board of Irrigation shall divide the whole State into subdivisions, called "water subdivisions," the executive for each being called "water commissioner."^^ This is the only subdivision of the State in Nevada, intermedi- ate division being omitted. In Utah the State Engineer shall subdivide the divisions into districts as necessity arises, appointing one executive called "supervisor" for each.2' In Wyoming the State Board of Control may subdivide the divisions into water districts as necessity arises, with one water commissioner for each district.^^ In Idaho the Board of Irrigation shall divide the State into "water disitricts" from time to time as priorities become adjudicated, with one "master" for each, ap- pointed by the water commissioner of the division and holding office for one year; in some cases elected by the appropriators.^^ With the executive of the district lies the direct im- mediate supervision of the owners, and direct adminis- 23 M. A. S. 2310 ct seq. 24 M. A. S. 2384, 2381. 2-5 Comp. Stats. 1903, sees. 6441, 6442. 26 Stats. 1901, p. 72. 27 Stats. 1905, c. 108, sec. 26 et seq. 28 Rev. Stats. 888, 889. 29 Stats, supra, sees. 23, 24. § 177 SUPERVISION OF APPROPRIATORS. 255 tration and control of the use of the waters, and th(? en- forcement of the rules and regulations of his superiors, subject to appeal to them. § 177. Police Regulations. — To enable the district exec- utive to perform his duties, owners are required to keep headgates and measuring devices, so that the water may be measiured, shut off, etc. A failure to maintain such devices is punishable criminally in Nebraska^^ and Utah,^^ and in Wyoming, Nebraska and Colorado, the water may be shut off.^^ In general, obstructing the work of the officials is punishable criminally.^"^ The district officers may make arrests in Colorado, Neb- raska and Wyoming.^^ Waste of water is punishable criminally in Colorado, Nebraska, and Nevada.^^ Sim- ilar provisions exist in Idaho; and in the other States and Territories having irrigation codes. '^"^ 30 Comp. Stats. 1903, sees. 6443, 6445. 31 Stats. 1901, c. 100, sec. 53. 32 Wyo. Stats. 1901, p. 99; Neb. Comp. Stats. 1903, see. 6443; Colo. S M. A. S., 1905 ed., 2286. 33 Neb. Comp. Stats. 1903, sees. 6407, 6443, 6445; Nev. Stats. 1903, p. 18, see. 20; Utah Stats. 1905, e. 108, sec. 64; "Wyo. Rev. Stats. 971; Stats. 1901, p. 95. 34 Colo. M. A. S. 2384, 2386; Neb, Comp. Stats. 1903, sec. 6443; Wyo. Rev. Stats. 972. ••!5 Colo. M. A. S. 2384; Neb. Comp. Stats. 1903, sec. 6407; Nev. Comp. Laws, 1900, sees. 430, 431. 36 See ante, sec. 20. 256 WATER EIGHTS IN THE WESTERN STATES, § 178 CHAPTER XI. ADJUSTMENT OF EXISTING PEIORITIES— IN STATES ADOPTING IRRIGATION CODES. § 178. Introductory. A. BY THE BOARD OR STATE ENGINEER. § 179. Preparatory steps. I 180, Procedure. § 181. Certificate. B. BY DECREE OF COURT. § 182. Preparatory steps. § 183. Procedure on suit. f 184. Decree and certificate. § 178. A census, detennination and listing is made of all existing appropriations in the States adopting ir- rigation codes. The duty of doing this rests, in some States (Nebraska, Nevada, New Mexico and Wyoming), with the head of the administrative organization; in others (Colorado, Idaho, North Dakota, Oklahoma, South Dakota and Utah) with the courts, by special proceedings. In all except Colorado it is done on the State's initiative. In Idaho, partially so. Determination of existing priorities is also rested with the Board of Control in the recent statute of New Mexico.^ The method of adjudicating existing prior- ities by decree of court is in force also under recent statutes in South Dakota^ and Oklahoma."^ In Farm Inv. Co. v. Carpenter, 9 Wyo. 110,^ it is said : 1 stats. 1905, p. 270, sec. 29. 2 Stats. 1905, p. 201, c. 132, sec, 15. ■■i Stats. 1905, p. 274, c. 21, sec. 5 et seq. 4 87 Am. St. Rep, 918, 61 Pac, 258, 50 L, R. A. 747. §§• 179, 180 ADJUSTMENT OF EXISTING PRIORITIES. 257 "The special ])roceedin<4- for adjudication was purely statutory, and the only reason for its creation is to be found in the inability of the ordinary procedure and processes of the law to meet the necessities pertaininj^ to the sej^regation by various individuals or companies of water from the same stream, by separate ditches or canals, and at different points along its course, under rights by appropriation to so divert and use the water. A similar proceeding in Colorado has been held to be based upon or to grow out of the police power of the State."^ A. BY THE BOARD OR STATE ENGINEER. § 179. Preparatory Steps. — In Nevada, the State En- gineer sends out blanks to be filled up by all exist- ing claimants, and sworn to, and he collects all ex- isting decrees of courts and other data available, and prepares complete maps.^ In Wyoming, a notice of in- vestigation is published for each stream, and all claim- ants then fill out sworn statements on blank forms, and the division superintendent then takes all evidence available, surveying the stream and examining claim- ants.^ § 180. Procedure. — In Nebraska, the whole, procedure is left to the determination of the State board, subject to appeal to the courts,® In Nevada, from the data col- lected as above, the State Engineer prepares a list of 5 Citing Farmers' Independent Ditch Co. v. Agricultural Ditch Co., 22 Colo. 513, 55 Am. St. Rep. 149, 45 Pac. 444; White v. Farmers' High Line Canal etc. Co., 22 Colo. 191, 43 Pac. 1028, 31 L. R. A. 828. See, also Louden etc. Canal Co. v. Handy Ditch Co., 22 Colt. 102, 110, 43 Pac. 535. 6 Nev. Stats. 1903, p. 18. 7 Wyo. Rev. Stats., 861 et seq. 8 Conip. Stats. 1903, sees. 6424, 6427. Water Rights— 17 258 WATEE RIGHTS IN THE WESTERN STATES. §§ 181,182 priorities and issues certificates, subject to action against liini in the courts.'' In Wyoming, the evidence gathered as above by the division engineer is placed be- fore the State Engineer, Avho prepares maps therefrom. The maps and other data are then all placed before the Board of Control, which adjudges the right of eadi claimant, subject to a rehearing or an appeal to the courts within one year.^'^ § 181. Certificates. — In Nebraska, the priorities thus determined are recorded in the office of the State Board, and a certificate issued to the appropriator.^^ In Ne- vada, the list prepared by the State Engineer as above is recorded with the county recorder, and that list is re- lied on thereafter. ^2 Certificates are also issued to the appropriators.^^ In Wyoming, the Board of Control issues a certificate of priority, which is recorded with the county clerk. ^^ B. BY DECREE OF COURT. § 182. Preparatory Steps. — In Utah, the State Engineer must make a complete survey of each river system or water source of the State, beginning with those most used for irrigation, collecting all data available. He must publish a notice in a newspaper for fifteen days before commencing on any system.^'' He files the re- sults with the clerk of the district court, which shall then have exclusive jurisdiction to determine priorities 9 Stats. 1903, p. 18. 10 Rev. Stats. 872, 874, 883; Stats. 1901, p. 70. 11 Neb. Conip. Stats. 1903, sees. 6427, 6429. 12 Stats. 1903, p. 18. 13 Ibid. 14 Rev. Stats. 873. 15 Stats. 1905, c. 108, sees. 6, 7. § 183 ADJUSTMENT OF EXISTING PRIORITIES. 259 of riijht on that stroam,^® and tho dork of the court theu publishes uotiee in a newspaper requiring all claims to be filed within six months. A sworn state- ment is filled out by each claimant, and all are tabu- lated by the ?5tate En § 189. Failure of diligence in construction work, § 190. Non-user. § 190a. Same. § 191. Discharged waste. B. FORFEITURE. § 192. Failure to comply with statute in making an appropriation § 193. Smith v. Hawkins. § 193a. Forfeiture under irrigation codes. C. ADVERSE USE. § 194. In general. § 195. No need of statutory appropriation. § 196. Use of water for a beneficial purpose. § 197. Continuous for five years. § 198. Hostile invasion of right of true owner. § 199. Open and ' ' not clam. ' ' 1 § 200. Chance to prevent. § 201. Uninterrupted. § 202. Payment of taxes. § 203. Against the United States. § 204. Conclusion. D. ESTOPPEL. § 205. Estoppel. E. EMINENT DOMAIN. § 206. Eminent domain. ^ 185. Water rights of appropriation may, it is true, continue indefinitely, but they may likewise come to an §§ 186,187 LOSS OF RIGHT. 263 end ill several ways; viz., by abandonment, forfeiture, adverse use, estoppel or eminent domain proceedings.^ A. ABANDONMENT. § 186. Abandonment is Voluntary and a Question of Fact. To constitute abandonment there must be a concurrence of act and intent so that abandonment is always vol- untary and a question of fact.- The accomplishment of one's purpose is strong evidence. If the appropriators disperse, the mine for which they used the water being worked out, the ditches decayed, and two years go by without doing anything, they have abandoned their water right.^ This is a typical case of abandonment.^ An abandonment of a ditch, however, does not neces- sarily involve an abandonment of the water right.^ The distinction between the water right and the ditch or other appliances must be borne in mind.*^ The right once abandoned, it cannot be revived by a sale and the sale passes nothing.^ ^ 187. Recapture. — Abandonment is always a question of intention. If discharge of water is made not be- 1 Matters are considered here that are sometimes considered under the title "How the Right may be Maintained," being the converse of loss of right. 2 Utt V. Frey, 106 Cal. 397, 39 Pac. 807, qiiote.l infra, sec. 190. 3 Davis V. Gale, 32 Cal. 26, 91 Am. Dec. 554. 4 For similar cases where the ditch, etc., was allowed to decay, see Dorr v. Hammond, 7 Colo. 79, 1 Pac. 693; Sieber v. Frink, 7 C9I0. 148, 2 Pac. 901; Goon v. Proctor, 27 Mont. 526, 71 Pac. 1003. -> New Mercer Ditch Co. v. Armstrong, 21 Colo. 357, 40 Pac. 989; Kleinschmidt v. Greiser, 14 Mont. 484, 43 Am. St. Rep. 652, 37 Pac. 5; Wood v. Etiwanda Water Co., 147 Cal. , 30 Cal. Dec. 14, 81 Pac. 512; McGuire v. Brown, 106 Cal. 660, 39 Pac. 1060, 30 L. R. A. 384. « But see Smith v. Hawkins, 110 Cal. 122, 42 Pac. 453, (lictiim contra. 7 Davis V. Gale, 32 Cal. 26, 91 Am. Dec. 554; Kirmau v. Hunn will, 93 Cal. 519, 29 Pac. 124. 264 WATER RIGHTS IN THE WESTERN STATES. § 187 cause it is waste, but for convenience in handling it, intending at the time to recapture it at some lower point, it is not abandoned. Water can be discharged into a stream as a link in a ditch line and taken out again, though there are prior appropriators on the same stream. It is not abandoned where there is an intent to recapture it.^ In a very early California case Mr. Justice Stephen Field, delivering the opinion of the court, said : "In the case at bar the channel of the south fork of Jackson Creek is used as a connecting link between the Amador County canal and the ditch of the defend- ants. The water from the canal is emptied into the fork with no intention of abandoning its use, but for the sole purpose of supplying the ditch There may be some difficulty in cases like the present, in determining with exactness the quantity of water which parties are entitled to divert. Similar difficulty exists in the case of a mixture of Avheat and corn — the quantity to be taken by each owner must be a matter of evidence. The courts do not, however, refuse the consideration of such subjects, because of the complicated and embarrassing character of the questions to which they give rise. If exact justice cannot be obtained, an approximation to it must be sought, care being taken that no injury is done to the innocent party. ^ The burden of proof rests with the party causing the mixture.^ ^ He must show clearly to what portion he is entitled. He can claim 8 Hoffman v. Stone, 7 Cal. 46; Butte etc. Co. v. Vaughn, 11 Cal. 143, 70 Am. Dec. 769; Davis v. Gale, 32 Cal. 26, 91 Am. Dec. 554; Cal.' Civ. Code, 1413. See South Dakota Stats. 1905, p. 201, see. 4; Oklahoma Stats. 1905, p. 274, sec. 3. The point is usually covered under the recent statutes of the various states in accord with the above decisions. (See Appendix B.) » Accord Burnett v. Whitcsides, 15 Cal. 35. 10 Accord Wilcox v. Hausch, 64 Cal. 461, 3 Pac. 108. g 188 LOSS OF RIGHT. 265 only such portion as is established by decisive proof. The enforcement of his ri<;ht must leave the opposite party in the use of the full quantity to which he was originally entitled."^ ^ In one case*- the same principle was applied to the in- crease of a stream that had been "developed" by tun- neling; and in another^^ where the increment was in- troduced by merely clearing out a choked channel.^ ^ The channel, so far as it is a conduit for the water to be recaptured, is treated on the principles of arti- ficial watercourses, and the water to be recaptured, as personalty. ^^ § 188. Parol Sale or Faulty Deed. — Owing to the insist- ence in the early days on the personal license side of possessory rights on the public domain, a conveyance operated on the principle of surrender and admittance, the grantor abandoning, and the grantee receiving his right because of his newly acquired possession. A sale of a possessory right was an unequivocal sign of intent to relinquish on the grantor's part, and hence was evi- dence of an abandonment.^*^ To-day possessory rights have been so far raised into the dignity of real estate that a sale will, if in writing so as to satisfy the stat- ute of frauds, operate as a transmission of title, like any other conveyance, without loss of priority. But still the old view obtains where the sale is by parol, or by 11 Butte C. & D. Co. V. Vaughn, 11 Cal. 143, 70 Am. Dec. 769. 12 MTayberry v. Alharnbra etc. Co., 125 Cal. 444, 54 Pac. 530, 58 Pac. 68. 13 Page V. Eocky Ford etc. Co., 83 Cal. 84, 21 Pac. 1102, 23 Pac. 875. 14 In general accord, Oppenlandcr v. Left Hand Ditcli Co., 18 Colo. 142, 31 Pac. 854. ir. A))tc, sec. 133. 16 Ante, sec. 123; Black v. Elkhorn Min. Co., 163 U. S. 445, 16 Sup. Ct. Rep. 1101, 41 L. ed. 221. 266 WATER EIGHTS IN THE WESTERN STATES. |'§ 189, 190 faulty deed. Such a sale is not inoperative. It con- stitutes an abandonment on the part of the grantor, and the creation of a new right in the grantee as a new ap- propriator by actual diversion. Priority is lost. Such a sale does not operate as an abandonment, however, until completed by putting the grantee in possession. The mere attempt to abandon (or an unsuccessful at- tempt at a parol sale) is not enough without the actual relinquishment of possession.^''^ § 189. Failure of Diligence in Construction Work. — An appropriator seeking the benefit of the doctrine of re- lation loses the benefit of that doctrine if he fails to use diligence in building his ditches and other construction work. But this is not a question of abandonment. It is matter precedent showing that no right was ever ob- tained against the other claimant who has performed the requisite formalities.^^ The two principles should be kept distinct. That this does not rest on abandonment is specially shown by the rule that the failure of diligence is immaterial if the diversion and use are nevertheless completed before others intervene.^^ The matter has already been discussed at leng-th.^^ § 190. Non-user. — With the exception noted below, the decisions agree that the question of non-user of water is the simple one of whether the non-user was for an unreasonable time under the circumstances, so as to reasonably indicate an intent to cease using the water for a beneficial purpose; a simple question for the jury similar to the question of the use of reasonable care left to the jury in the law of negligence. Where the 17 The cases are cited ante, sec. 123. 18 Nevada etc. Co. v. Kidd, 37 Cal. 282. m Wells V. Mantes, 99 Cal. 583, 34 Pac. 324. 20 Ante, chapter VI. See, also, infra, sec. 192. % 190 LOSS OF RIGHT. 267 iioii-user is for an uiirt'iisouable time, taking all the sur- rounding circumstances into consideration, there is an abandonment of the water right ; on the other hand, if it appears to he a reasonable time, there is not. The cases agree upon this with one exception noted below. The decisions to this effect may be divided into two classes : (1) If at the start, the Avater right having been newly acquired by completion of the preparatory work, there is a failure for an unreasonable time under the circum- stances to apply the water to a useful purpose, there is an abandonment. No definite period of time is set in the cases generally. The non-user is not conclusive, but a question depending on (under the facts of each case) what is an unreasonable delay; that is, what non- user under the circumstances reasonably indicates the intent, in that case, not to apply the water to a useful purpose.2^ (2) A temporary non-user later owing to breakage of apparatus, during change of plans, or from other tem- porary^ cause. Here again the rule of the cases gener- ally is that no definite time is set The non-user being for a reasonable time under the circumstances of each case, there is no abandonment.^^ If work is stopped because the stream ceases to flow (act of God) or be- cause of tunneling (i. c, tortious act) of third person, there is no abandonment.^^^ But if unreasonably con- tinued, here again it will be evidence (not conclusive, but taken with all the circumstances of the case) of an intent not to apply the water to a useful purpose, and 21 Senior v. Anderson, 115 Cal. 496, 47 Pac. 454; Senior v. An- derson, 130 Cal. 290, at 296, 62 Pac. 563. And ante, sees. 109, 145, 146. 22 Lobdell V. Hall, 3 Nev. 507. 23 Santa Barbara v. Gould, 143 Cal. 421, 77 Pac. 151. 268 WATER RIGHTS IN THE WESTERN STATES. § 190 an abandonment.^^ During the temporary cessation of use, others may use the water.^^ The rule concerning non-user is thus summed up in Utt V. Frey, 106 Cal. 397, 38 Pac. 807 : "The right which is acquired to the use of water by appropriation may be lost by abandonment. To aban- don such right is to relinquish possession thereof with- out any present intention to repossess. To constitute such abandonment there must be a concurrence of act and intent, viz., the act of leaving the premises or prop- erty vacant, so that it may be appropriated by the next comer, and the intention of not retuming.^^ The mere intention to abandon, if not coupled with yMding up possession or a cessation of user, is not sufficient; nor will the non-user alone without an intention to aban- don be held to amount to an abandonmentw Abandon- ment is a question of fact to be determined by a jury or the court sitting as such. Yielding up possession and non-user is evidence of abandonment, and under many circumstances sufficient to warrant the deduction of the ultimate fact of abandonment. But it may be re- butted by any evidence which shows that, notwith- standing such non-user or want of possession, the owner did not intend to abandon, "2" 24 Bear River etc. Co. v. Boles, 24 Cal. 359; Nevada etc. Co. v. Kidd, 37 Cal. 282, at 313; ante, sec. 186. 25 Ibid; and ante, sec. 31, / 26 Citing Judson v. Malloy, 40 Cal. 299; Bell v. Bed Rock etc. Co., 36 Cal, 214; Moon v, Rollins, 36 Cal, 333, 95 Am, Dec, 181; St. John V, Kidd, 26 Cal. 272; Richardson v. McNulty, 24 Cal. 345; Willson V. Cleveland, 30 Cal. 192, 27 Accord Ponieroy on Riparian Rights, see. 90; Farnham on Waters, sec. 691; accord Dorr v. Hammond, 7 Colo. 79, 1 Pac, 693; Sieber v, Frink, 7 Colo, 149, 2 Pac. 901; Welch v, Garrett, 5 Idaho, 639, 51 Pac. 405; Integral Co. v. Altoona Co., 75 Fed. 379, 21 C, C, A, 409; North American etc, Co. v, Adams, 104 Fed. 404, 45 C. C. A, 185; 17 Ency, of Law, 517, citing cases. i 190a LOSS OF RIGHT. 269 § 190a. Same. — Like the rule of reasonable care in the law of negligence, the rule of reasonable time here is in- definite. In cases where there is no evidence of impor- tance bearing on the surrounding circumstances it would be difficult for the jury to say whether the non-user was for an unreasonable time. It would be enough in such eases to say, as in the law of negligence, that the side claiming there is an abandonment, having failed to con- vince the jury of the unreasonable length of the non-user, has failed to sustain the burden of proof, and failed to make out its case.^^ An attempt has been made to cover such a case by a resort to a presumption of abandonment from non-user.29 This was early rejected in Califor- nia.^*^ The later case of Smith v. Hawkins^^ treats the mat> ter and avoids the difficulty in an entirely new way; viz., on the principles not of abandonment at all, but of forfeiture. This case arbitrarily selects five years as a limit of non-user under any circumstances. The test of intent is then rejected and the principles of forfeit- ure acting in invitum substituted. Accepting Smith v. Hawkins as law, the rule, as stated above, that non-user must be considered on the principles of abandonment under the test of reasonable- ness remains unaffected, so long as five years have not elapsed. This is acknowledged in Smith v. Hawkins. That case merely introduces a new principle governing the case at the expiration of the five-year period. That case is further considered below.^^ 28 Beaver etc. Co. v. St. Vrain etc. Co., 6 Colo. App. 130, 40 Pac. 1066; Platte etc. Co. v. Central etc. Co., 32 Colo. 102, 75 Pac. 391. 29 Kinney on Irrigation, sec. 257; Sieber v. Frink, 7 Colo. 148, 2 Pac. 901. 30 Partridge v. McKinney, 10 Cal. 181. 31 Infra, sec. 193. 32 Sec. 193. 270 WATER EIGHTS IN THE WESTERN STATES. § 191 The introduction of the principle that non-user after a definite period of time operates as a forfeiture as dis- tinguislied from abandonment was hence introduced in California only recently, and by a decision of the court, not by legislation. In the recent irrigation codes of the arid States this new principle usually finds a place also, as considered below. § 191. Discharged Waste. — Where water has been sev- ered from the natural stream and used in an artificial watercourse, such as a ditch or flume, we have seen that it has become personal property, not longer subject to the law of natural waters. In discharging it as waste from the ditches, etc., the question is not one of aban- donment of a water right, but of abandonment of spe- cific personal property, viz., the very particles of water that are discharged. The question is of importance here, though it should be noticed that it turns on the law of artificial watercourses, and not on the law of natural waters. There is an abandonment of whatever runs waste after use. When the owner has made all the use of the water he wants, and lets the waste run off from ditches, etc., without intent to recapture, the waste is abandoned, and the owner of the water right no longer had any claim upon it.^^ If it finds its way by natural channels into another creek, he cannot go there and re- claim it as against other appropriators there who make use of it.-^^ If a miner digs a ditch to drain away the water from a stream so that the bed can be mined, the water is abandoned.^^ 33 Dougherty v, Creary, 30 Cal. 290, 89 Am. Dec. 116; Davis v. Gale, 32 Cal. 26, 91 Am. Dec. 554. 34 Eddy V. Simpson, 3 Cal. 249, 58 Am. Dec. 408; Schulz v. Sweeney, 19 Nev. 359, 3 Am. St. Rep. 888, 11 Pac. 253. 35 McKinney v. Smith, 21 Cal. 374. § 191 LOSS OF EIGHT. 271 Tlio abandonment froiii an artificial watercourse is, however, only of the specific water allowed to run waste, — not of any of the incoming water, owing to the distinction of the water as personalty in the artificial watercourse, and the water right itself as an intangible use and flow. One may cease the abandonment of waste from a ditch, and so use the water that none of it there- after runs waste at all,^^ or so that it runs off in a new place where people below no longer can get it.'' No permanent right to have the discharge continued can be acquired either by estoppel or prescription, even though the lower clainmnts had built expensive flumes or ditches to catch the waste. -^^ Again it should be repeated that this rule deals only with woHte discharged from an artificial watercourse. Kights in the surplus flow of the" natural stream itself may well be acquired by lower claimants, as has been discussed under the question of successive appropri- ators. The lower claimants may appropriate the sur- plus of the natural flow,^^ to which they will have a vested right that others cannot deprive them of by changing their place of use, or in any other way. Between the case of lower claimants to the natural stream and the case of lower claimants to artificial dis- •'!« Hanson v. McCue, 42 Cal. 303, commented on in Katz v. Walk- inshaw, 141 Cal. 116, at 129, 99 Am. St. Rep. 35, 70 Pac. 663, 74 Pac. 766. 37 Correa v. Frietas, 42 Cal. 339. 38 Dougherty v. Creary, 30 Cal. 290, 89 Am. Dec. 116; Stone v. Bumpus, 40 Cal. 428; Stockman v. Eiverside etc. Co., 64 Cal. 57, 28 Pac. 116; Anaheim etc. Co. v. Semi-Tropic Co., 64 Cal. 185, 30 Pac. 623; Lux v. Haggin. 69 Cal. 255, at 266, 278, 10 Pac. 674 (disap- proving Parke v. Kilham, 8 Cal. 77, 68 Am. Dec. 310, on this point); Lakeside etc. Co. v. Crane, 80 Cal. 181, 22 Pac. 76; Hargrave v. Cook, 108 CaL 72, 41 Pac. 18, 30 L. E. A. 390. See Arkwright v. Gell, 5 Mees. & W. 226; and see ante, sec. 132. so Barneich v. Mercy, 136 Cal. 205, 68 Pac. 589; and see Ball v. Kehl, 95 Cal. 606, 30 Pac. 780; ante, sec. 29; and infra, sec. 194 et seq. 272 WATER EIGHTS IN THE WESTERN STATES. § 192 charge from a ditch is the intennediate case of lower claimants on a natural stream into which the waste from a ditch has been discharged. Are these lower claims to be viewed as claims to an artificial source of suppl}^ on the principles just stated of discharge from ditches, or as claims to a natural source of supply giv- ing vested rights? The view that is most just, and that seems to prevail, is the latter. Lower claimants on the natural streams need not look beyond the fact that the conditions at their point are those of a natural stream. The waste discharged into the stream above may have been originally diverted from that very stream ; or, in any event, the effect below is entirely the same as though the increment were a natural tributary. When claim- ants have been using the water on the natural stream below, the upper discharge into the stream cannot be cut off. It is not treated as an artificial discharge of Avaste, to which no permanent rights can attach, but becomes part of the natural fiow by accession,'*^ to which lower rights attach on the principles of successive appro- priators. The place of use by the one above who has been thus discharging his waste water into a natural stream cannot be changed if thereby the discharge into the stream is discontinued, or lower claimants are thereby injured in any other way, under the principles already discussed under "change of place of use."^^ B. FORFEITURE. § 192. Failure to Comply with Statute in Making an Ap- propriation. — Section 1419 of the Civil Code of California is as follows: "Forfeiture. A failure to comply with such rules deprives the claimants of the right to the use of the water as against a subsequent claimant who 40 Butte etc. Co. v. Vaughn, 11 Cal. 143, 70 Am. Dec. 769. 41 Last Chance etc. Co. v. Bunker Hill etc. Co. (C. C. Idaho), 49 Fed. 430; Gassert v. Noyes, 18 Mont. 216, 44 Pae. 959. § 193 LOSS OF EIGHT. 273 complies therewith." The rules mentioned are those governing how an appropriation is to be made. We have already discussed the cases construing this section, the result being seen that the word "claim- ants" here used means only those who are engaged in the preparatory- work, and seek the benefit of the doc- trine of relation. It does not apply to an appropriator by actual diversion,^^ and the section ceases to be ap- plicable after an appropriation is once completed. A completed appropriation is hence not within that section, and so there is not, by this section, any statu- tory forfeiture of a right once acquired, as distinguished from abandonment, in those States where this section is copied. Such, also, would seem to l>e the case under those ir- rigation codes which (as already discussed) include the actual application of the water to a beneficial use within a stated time as a prerequisite to the issuance of a li- cense. A failure to make such application of the water would have the result that no water right was com- pleted, rather than that a completed one was forfeited. § 193. Smith v. Hawkins. — If there is any such thing as forfeiture of a water right, as distinguished from abandonment, it rests, in California, on Civil Code, sec- tion 1411, as construed in Smith v. Hawkins, 110 Cal. 122, 42 Pac, 453. The distinction on principle would be a loss of the right in inrntum, as distinguished from a vol- untary act. Where mere non-user and no other important evidence, the jury have difficulty in saying when that continuance of non-user is unreasonable. In Smith v. Hawkins the difficulty is cut short at the end of five years. Non-user for five years was held to constitute 42 De Necochea v. Curtis, 80 Cal. 397, 20 Pac. 563, 22 Pac. 198; Wells V. Mantes, 99 Cal. 583, 34 Pac. 32-i; ante, chapter VI. Water Eights— 18 274 WATEE EIGHTS IN THE WESTEEN STATES. § 193 a loss of right not by abandonment, and hence irre- spective of intention, but by forfeiture, in invitum. This relieves the jury of a difficult question of fact, but it is an entire departure from the older cases, which left it to the jury, however short or long the time. Smith V. Hawkins, however, is such a flat decision upon the point, fixing a limit of five years, that, though open to the charge of judicial legislation, it is likely to be followed. The material part of the opinion in Smith V. Hawkins is as follows: "Section 1411 of the Civil Code declares that the appropriation must be for some useful or beneficial pur- pose, and when the appropriator or his successor in in- terest ceases to use it for such a purpose, the right ceases. This section deals with the forfeiture of a right by non-user alone. We say non-user, as distinguished from abandonment. If an appropriator has, in fact, abandoned his right, it would matter not for how long a time he had ceased to use the water, for the moment that the abandonment itself was complete, his rights would cease and determine. Upon the other hand, he may have leased his property, and paid taxes thereon, thus negativing the idea of abandonment, as in this case, and yet may have failed for many years to make any beneficial use of the water he has appropriated. The question presented, therefore, is not one of aban- donment, but one of non-user merely, and, as such, in- volves a construction of section 1411 of the Civil Code. That section, as has been said, makes a cessation of use by the appropriator work a forfeiture of his right, and the question for determination is, 'How long must this non-user continue before the right lapse ?'^^ "Upon this point, the legislature has made no specific 43 The previous cases had answered this question by saying any time that the jury considered unreasonable under the circumstances. § 193 LOSS OF RIGHT. 275 declaration, but, by jiiialog:}^ we hold that a continuous non-user for five years, will forfeit his right. The right to use the water ceasing at that time, the rights of way for ditches and the like, which are incidental to the primary right of use, would fall also, and the servient tenement would be thus relieved from the servitude. "In this ^^tate five years is the period fixed by law for the ripening of an advei'se possession into prescrip- tive title. Five years is also the period declared by law after which a prescriptive right depending upon enjoyment is lost for non-user; and for analogous rea- sons we consider it to be a just and proper measure of time for the forfeiture of an appropriator's rights for a failure to use the water for a beneficial purpose. "Considering the necessity of water in the industrial aifairs of this State, it would be a most mischievous perpetuity which would allow one who has made an ap- propriation of a stream to retain indefinitely, as against other appropriators, a right to the waters therein, while failing to ai)ply the same to some useful or beneficial purpose. Though during the suspension of his use, other persons might temporarily utilize the water un- applied by him, yet no one could atford to make dispo- sition for the employment of the same involving labor or expense of any considerable moment, when liable to be deprived of the element at the pleasure of the appro- priator, and after the lapse of any period of time, how- ever great. "The failure of plaintitfs to make any beneficial use of the water for a period of more than five years next preceding the commencement of the action, as found by the court, results, from what has been said, in a for- feiture of their rights as appropriators.''^^ ^^ roiiqiaro Waring v. Crow, 11 Cal. 366; Dotlge v. Marden, 7 Or. 456. Farmers' etc. Irr. Hist. v. Frank (Xeb.), 100 X. W. 286, seems to approve Smith v. Hawkins. 276 WATER RIGHTS IN THE WESTERN STATES. § 193a In Integral etc. Co. v. Altoona etc. Co.^^ Smith v. Hawkins was considered, but as less than five years of non-user was shown, it was held unnecessary to pass upon that case.^® To the comments we have made upon Smith v. Haw- kins, under the question of abandonment, the following may be added : In the circuit court for the ninth circuit (District of Nevada),*'^ in a question concerning an ap- propriator of water, the court uses the following lan- guage : "It is well settled that lapse of time does not of itself constitute an abandonment, and that it is only a cir- cumstance for the jury to consider in determining whether there has been an abandonment. In other words, the question is one of intent. Said the court in Waring v. Crow, 11 Cal. 369, ^The intention alone gov- erns. '-^« In Moon v. Rollins, 36 Cal. 337, it was held that one in possession of land might leave it for a period of five years if he had the intention of returning, and that his mere failure to occupy the land for that period does not necessarily constitute an abandonment."'*^ § 193a. Forfeiture Under Irrigation Codes. — A Utah stat- ute^" contained the same provision as section 1411 of the California Civil Code, adding that when one "ceases to use the water for a period of seven years, the right 45 75 Fed. 379, 21 C. C. A. 409. 40 Compare Wyo. Rev. Stats. 895. 4 7 In Valcakla v. Silver etc. Co., 86 Fed. 90, 29 C, C. A. 591. 48 Keane v. Cannovan, 21 Cal. 293, 82 Am. Dec. 738; St. John v. Kidd, 26 Cal. 272. 49 Compare, also, opinion of Knowlos, Judge, in Hewett v. Story, 64 Fed. 510, 12 C. C. A. 250, 30 L. R. A. 265, citing Judson v. Malloy, 40 Cal. 299, as also holding that mere non-user, however long, does not constitute an abandonment. 50 Now substantially Laws 1905, c. 108, sec. 53. S 193a LOSS OF BIGHT. 277 ceasos; but questions of abandonincnt shall be questions of fact and shall be (h'tcrmiiicd as oilier questions of fact." This, inoi'e than the California section, might have been construed to create a forfeiture as distin- guished from an abandonment. But the court^^ held that it did not, and decided contra to Smith v. Haw- kins. Though the non-user had continued more than seven years, it was held not to cause a loss of right, be- cause the intent to abandon was lacking. Smith V. Hawkins is pretty sure to be followed in California. It will place a limit of five years on the right to hold water for future needs in irrigation f- an important result of the case. In other States, non-user of water held for future needs has been allowed to go on for ten years or more, without loss of right,^^ in the absence of statute specifying a shorter time in which the actual use must be accomplished. In Wyoming, the last legislature provided for a loss of right after five years of non-user.^^ Likewise Idaho. ^^ In South Dakota, non-user for two years causes loss of right.^'' In Oklahoma, non-user for two years causes loss of right. •'^" In New Mexico, non-user for four years causes loss of right.^^ Such statutes as these will probably be construed in the light of Smith v. Hawkins, as providing for forfeit- ure, in inrituni^ regardless of intent not to abandon. 51 In Promontory etc Co. v. Argile (Utah), 79 Pac. 47. 52 See ante, Appropriation for Future Needs, sees. 145, 146. 53 Ante, sees. 145, 146. 54 Stats. 1905, p. 36. 55 Stats. 1905, p. 27. 56 S. Dak. Stats. 1905, p. 201, c. 132, sec. 45. 57 Stats. 1905, p. 274, c. 21, see. 28. 58 Stats. 1905, p. 270, sec. 5. 278 WATER RIGHTS IN THE WESTERN STATES. § 194 C. ADVERSE USB. § 194. In General. — By one allowing- another to di- vert the water (in whole or in part^^) adversely for five years, the right is correspondingly lost by the former and acquired by the latter. *''' A corporation is in this respect on the same footing as a natural person.^^ A landlord may lose his right in this way, if the adverse use is against his tenant. "^^ It is said that a grant will be presumed to have been made to the adverse claim- ant,®^ though this is merely a fiction of the law. It is not a reward of adverse diligence, but a punishment for delay; the law will not look into stale demands. The result is that title passes in either view.®^ The right by advei*se use must be specially pleaded.®^ It may itself, in turn, be lost by adverse use later, or in other ways of loss of rig'ht.^® The question of priority as concerns a right obtained by adverse use has not arisen; but seems a point that may well give difficulty. On the presumed grant theory, the newly acquired right would retain the priority of the original appropriation, as a grant in writing trans- 59 Smith V. Green, 109 Cal. 228, at 233, 41 Pac. 1022; Smith v. Hawkins, 120 Gal. 86, 52 Pac. 139. (50 Civ. Code, 1007; Davis v. Gale, 32 Cal. 26, 91 Am. Dec. 554; Cox V. Clough, 70 Cal. 345, 11 Pac. 732; Alta etc. Co, v. Hancock, 85 Cal. 219, 20 Am. St. Rep. 217, 24 Pac. 645; Gallagher v. Monte- cito etc. Co., 101 Cal. 242, 35 Pac. 770; Faulkner v. Rondoni, 104 Cal. 140, 37 Pac. 883. ci Montecito etc. Co. v. Santa Barbara, 144 Cal. 578, 77 Pac. 1113. 02 Heilbron v. Last Chance etc. Ditch Co., 75 Cal. 117, 17 Pac. 65. 63 American etc. Co. v. Bradford, 27 Cal. 360; Turner v. Tuolumne etc. Co., 25 Cal. 397; Yankee Jim etc. Co. v. Crary, 25 Cal. 504, 85 Am. Dec. 145; American Co. v. Bradford, 27 Cal. 360; Faulkner v. Rondoni, 104 Cal. 140, 37 Pac. 883. 64 Alhambra etc. Water Co. v. Richardson, 72 Cal. 598, 14 Pac. 379; Cal. Civ. Code, 1007. 65 Matthews v. Ferroa, 45 Cal. 51; Winter v. Winter, 8 Nev. 129. 60 Los Angeles v. Pnniproy, 125 ("al. 420, 58 Pac. 69. §§ 195-198 LOSS OF RIGHT. 279 mits the ri<;lit without loss of priority.*^" But if that fiction is hiid aside it would seem that the adverse use gives a rinht only from the start of the adverse use, as a new appropriator by actual diversion, as in the case of a parol sale.''^ The following are tlie requisites for the acquisition of a right by adverse use.^^ § 195. No Need of Statutory Appropriation. — rostino- a notice is valuable evidence, but it is not necessary to make out a right by adverse use."^" § 196. Use of the Water for a Beneficial Purpose. — The adverse claimant must have himself used the water for a beneficial purpase.*^i Adverse use of land does not carry title to a water right appurtenant thereto if there was no specific use made of the water.'^ 5^ 197. Continuous for Five Years. — Five years is usually the period for all interests in real estate.''^ During that time the use must have been continuous.'^ It is suffi- ciently continuous if the adverse claimant used the water regularly as his needs required, though this did not necessitate a steady flow."^^ i^ 198. Hostile Invasion of Right of True Owner. There must be an invasion of the right of the true owner un- 67 Ante, sec. 121. 68 Ante, sees. 84, 123. 69 In general, see 93 Am. St. Eep. 711, note. 70 Alta etc. Co. v. Hancock, 85 Cal. 219. 71 Senior v. Anderson, 130 Cal. 290, at 297, 62 Pac. 563; Alta etc. Co. V. Iluncoek, 85 Cal. 219, 20 Am. St. Bep. 217, 24 Pac. 645. '•^ Ihiil. See, also, 93 Am. St. Rep, 719, note. 7.-! Cal. Code Civ. Proc. 318. 74 Cal. Code Civ. Proc. 325. 75 Hesperia etc. Co. v. Rogers, 83 Cal. 10, 17 Am. St. Rep. 202, 23 Pae. 196. See 93 Am. St. Rep. 717, note. 280 WATEE EIGHTS IN THE WESTEEN STATES. § 198 der a claim of right by the adverse claimant.^*' If there is permission, the use, however long continued, cannot ripen into a right. '^'^ A use under a void deed as though the deed were good is adverse to the grantor, though not adverse to the right of strangers to the deed."^^ There can hence be no adverse use by lower claim- ants against those above, since a use below can in no way interfere with the flow above; it is no possible in- vasion of the right of the upper owner.'^^ Nor is the use of a surplus above the appropriator adverse to him, since it leaves the amount to which he is entitled unin- vaded.^*' No right by adverse use can hence result from use below, or from use of surplus above.® ^ "A mere scrambling possession of the water or the obtaining of it by force or fraud gives no prescriptive right ; nor can this right be acquired if, during the time in which such rig'ht is claimed to have accrued, there has been an abundant supply of water in the stream or river for other claimants. "^^ In Alta Land Co. v. Hancock, 85 Cal. 219, 20 Am. St. Kep. 217, 24 Pac. 645, it is said that an adverse use of laud does not necessarily carry with it water used thereon, if there is no adverse use of the water. This would seem to be inconsistent with the rule that the 76 American etc. Co. v. Bradford, 27 Cal. 360; Oneto v. Eestano, 78 Cal. 374, 20 Pac. 743; Paige v. Eocky Ford etc. Co., 83 Cal. 84, 21 Pac. 1102, 23 Pae. 875. 77 Ball V. Kehl, 95 Cal. 606, 30 Pac. 780. 78 Eose V. Mesmer, 142 Cal. 322, at 332, 75 Pac. 905; Cal. Civ. Code, 323. 79 Bathgate v. Irvine, 126 Cal. 135, 77 Am. St. Eep. 158, 58 Pac. 442; Cave v. Tyler, 133 Cal. 566, 65 Pac. 1089; Beers v. Sharpe, 44 Or. 386, 75 Pac. 717. 80 Fifield V. Spring Valley etc. Works, 130 Cal. 552, 62 Pac. 1054. 81 See, also, 93 Am. St. Eep. 717, note; Talbot v. Butte etc. Co., 29 Mont. 17, 73 Pac. Ill; Norman v. Corbley (Mont.), 79 Pac. 1059. 82 Union Mill etc. Co. v. Dangberg, 81 Fed. 73. §§ 199,200 LOSS OF RIGHT. 281 water right usually passes as an appurtenance to the land. If the use is inconsistent with the owner's right, it is adverse, irrespective of the amount of damage, how- ever small that may be; even if there is no money dam- age at all.^^ § 199. Open and "Not Clam." — The use must be open and "not clam" or clandestine, hidden, or concealed.^^ This will hence be an important obstacle to claims to percolating water by adverse use. § 200. Chance to Prevent. — There must be a chance for the true owner to prevent the use by the claimant, either by physical force, or legal proceedings.^^ Hence, another reason why there can be no right by adverse use from use below, or of the surplus above, the appropri- ator.^'' As there Avas no right of action for loss of perco- lating water under the old rule, no right to it could be acquired by adverse use, under the old rule.^^ 83 Creigton v. Evans, 53 Cal. 55; Moore v. Clear etc. Works, 68 Cal. 146, 8 Pac. 816; Stanford v. Felt, 71 Cal. 249, 16 Pac. 900; Heilbron v. Fowler etc. Canal Co., 75 Cal. 426, 7 Am. St. Kep. 183, 17 Pac. 535; Conkling v. Pacific etc. Co., 87 Cal. 296, 25 Pac. 399; Walker v. Emerson, 89 Cal. 456, 26 Pac. 968; Spargur v. Hurd, 90 Cal. 221, 27 Pac. 198; Mott v. Ewing, 90 Cal. 231, 27 Pac. 194. See ante, sec. 167. 84 Montecito etc. Co. v. Santa Barbara, 144 Cal. 578, at 597, 77 Pac. 1113. 85 Hanson v. McCue, 42 Cal. 303, 10 Am. Eep. 299; Mpntecito etc. V. Santa Barbara, 144 Cal. 578, at 597, 77 Pac. 1113; but see Alhambra etc. Water Co. v. Richardson, 72 Cal. 598, 14 Pac. 379; Fogarty v. Fogarty, 129 Cal. 46, 61 Pac. 570. 86 Supra, sec. 198. 87 Hanson v. McCue, 42 Cal. 303, 10 Am. Rep. 299. 282 WATER RIGHTS IN THE WESTERN STATES. §§ 201-203 § 201. Uninterrupted. — The use must be uninterrupted by the true owner.^* Mere verbal objection is not an interruption; it must be some act actually causing a stoppage in the adverse use for a reasonable time.^^ § 202. Payment of Taxes.— Section 325 of the Cali- fornia Code of Civil Procedure requires the claimant to real estate by adverse use to have paid the taxes thereon during the five years. This applies also to water rights, as they are real estate.^^ In construing this rule, the adverse claimant is favored. If no taxes were assessed, the rule is inoperative.*^^ The burden of proof that taxes were assessed, and also that they were not paid, is not on the adverse claimant, but on the owner.^2 If the claimant used the water upon other land owned by him, and paid the taxes assessed upon that land generally, that fulfills the requisite, though there was no separate or specific payment of taxes for the water, there having been no separate assessment thereof.®^ § 203. Against the United States.— There can be no ad- verse use against the United States, and hence if the title to the water was in the government any part of the five years, no prescriptive right can arise. ^^ And 88 American Co. v. Bradford, 27 Cal. 360; Davis v. Gale, 32 Cal. 26, 91 Am. Dec. 554; Cave v. Crafts, 53 Cal. 135; Bree v. Wheeler, 129 Cal. 145, 61 Pac. 782; Montecito etc; Co. v. Santa Barbara, 144 Cal. 578, at 597, 77 Pac. 1113. 89 Cox v. Clough, 70 Cal. 345, 11 Pac. 732. 90 Frederick v. Dickey, 91 Cal. 358, 27 Pac. 742. 91 Heilbron v. Last Chance Water etc. Co., 75 Cal. 117, 17 Pac. 65; Oneto v. Restano, 78 Cal. 374, 20 Pac. 743; Hesperia etc. Co. V. Rogers, 83 Cal. 10, 17 Am. St. Rep. 202, 23 Pac. 196. 92 Ibid. !).-5 Conradt v. Hill, 79 Cal. 587, 21 Pac. 1099. 94 Mathews v. Ferrea, 45 Cal. 51; Wilkins v. McCue, 46 Cal. 656; Jatimn v. Smith, 95 Cal. 154, 30 Pac. 200; Smith v. Hawkins, 110 Cal. 122, 42 Pac. 453; Vansickle v. Haines, 7 Nev. 249. § 204 LOSS OF RIGHT. 283 also, consequently, the acquisition of a right by appro- priation and one by adverse use stand on entirely differ- ent footings.^^ § 204. Conclusion.— ''Sections 322 and 324 of the Code of Civil Procedure require an actual occupation, that this occupation be open and notorious, and that it be in hostility to plaintiff's title, and under a claim of title exclusive of any other right, and that the occupa- tion shall have been continuous and uninterrupted for five years. Section 325 of the same code makes the ad- ditional requirement of the payment of all levied and assessed taxes. In Unger v. Mooney, 63 Cal. 595, 49 Am. Rep. 100, these essential elements for the acquisi- tion of a title by prescription are specifically set forth. It is true that in Cave v. Crafts, 53 Cal, 135, it is said that the adverse use must be peaceable. But that means no more, as the opinion itself explains, quoting Wood on Nuisances, than that it must be uninterrupted. Says Wood : 'The use must also be open and as of right, and also peaceable, for if there is any act done by other owners that operates as an interruption, however slight, it prevents the acquisition of the right by such use.' If the possession has been uninterrupted, of necessity it has been peaceable. If it had been interrupted, of necessity it has not been peaceable. The words are there- fore interchangeable and synonymous in the pleading of prescriptive title. (American Co. v. Bradford, 27 Cal. 300 ; Chauvet v. Hill, 93 Cal. 407, 28 Pac. 106G ; Smith v. Hawkins, 110 Cal. 122, 42 Pac. 453.)"' The above is quoted from Montecito etc. Co. v. Santa Barbara, 144 Cal. 578, 77 Pac. 1113, as a late summary of the law of adverse use concerning water rights. ''From these observations it will be seen that it is 95 Ante, sec. 62. 284 WATER EIGHTS IN THE WESTERN STATES. § 205 difficult to obtain a prescriptive right to tlie use of water under our law as it now stands." This remark was made by the Idaho court^^ after setting forth re- quirements similar to those of California as given above ; and the result in the many California cases where a right by adverse use was contended for, substantiates this conclusion, D. ESTOPPEL. § 205. We have already considered the question of loss by estoppel as applying to artificial watercourses, finding that there is no estoppel arising from merely standing by and allowing the use by others below of the waste discharged, from ditches, etc.^' As concerns natural streams the principle, so far as regards estoppel merely, is the same. Lower or upper rights in the natural stream may be acquired by appropriation, or upper rights by adverse use, but regarding estoppel strictly — that is, standing by and allowing the use of the water by others — that will usually no more estop the true owner from interfering later than in the case of artificial watercourses. If one has no right by ap- propriation or adverse use, tlie mere silence of others gives him none by estoppel. The rule is laid down in Lux v. Haggin,^^ as follows : "Parke v. Kilham, 8 Cal. 77, 68 Am. Dec. 310, was an action at law to recover certain water and damages, tried by a jury, who rendered a general verdict. The court held that an instruction in the following terms was 'substantially correct' : That if those from and through whom the plaintiffs claim had the prior right to the waters, and they stood by and saw those from »6 In Hall V. Blackman, 8 Idaho, 272, 68 Pac, 19. 97 Ante, sees. 132, 150, 191. 98 69 Cal. 255, at 278, 10 Pac. 674. § 206 LOSS OF EIGHT. 285 whom the defeudant dorives his title to the diteh, and the right to the waters of the creek, appropriate the water of the oreek, at great expenditure of money and labor, under the mistaken idea that the defendant's ven- doi-s were ol)taiuin<;- the first appro])riation, and did not inform them of the mistake, they, plaintiff's vendors, and the plaintiffs who claim under them, are estopped from setting up their prior right at this time. "In the light of the subsequent decisions, it can scarcely be claimed that the facts recited in the instruc- tion constituted an equitable estoppel which could be relied on as a defense at law. It may be that the de- fendant had the better right. In fact, the defendant's grantors seem to have appropriated the water before the plaintiff's gl-antors even 'located' the mining claim. It doe-s not appear that the plaintiff's predecessors ever took actual possession of the mining claim; and even if the location of the claim preceded the defendant's appropriation, it does not appear that the manner of the location was such as that defendant's grantors were l)ouud to take notice of it. But, whatever, the facts, we cannot assent to the proix)sition — apparently recog- nized by the court — that the mere silence of plaintiff's grantors, disconnected from other circumstances in evi- dence, created an estoppel at law."^^ E. EMINENT DOMAIN. § 206. Private rights of ownership must give way to public benefit, and may be taken for public use. In this respect the law is the same concerning waters as concerning all other property. The following may, however, be mentioned. 99 Accord cases cited in 93 Am. St. Rep. 717, note. Bolter V. Garrett. 4-i Or. 304. 75 Pac. 142. See ante. sec. 132 et seq. 286 WATEE EIGHTS IN THE WESTEEN STATES. § 206 The California constitution ^^^ provides: "Private property shall not be taken or damaged for public use without just compensation having been first made to, or paid into court, for the owner, and no right of way shall be appropriated to the use of any corpora- tion other than municipal until full compensation there- for be first made in money or ascertained and paid into court for the owner, irrespective of any benefit from any improvement proposed by such corporation, which compensation shall be ascertained by a jury, unless a jury be waived, as in other civil cases in a court of rec- ord, as shall be prescribed by law." Under this constitutional provision, the legislature has provided^ °^ for various cases for eminent domain proceedings, among them the following: "Canals, ditches, dams, pondiugs, flumes, aqueducts and pipes, for irrigation, public transportation, supplying mines and farming neighborhoods with water, and draining and reclaiming lands," etc. All acts of the legislature are, however, subject to the constitutional limitation above quoted and to a sim- ilar provision in the constitution of the United States (Amd. XIII). The statutes passed by the legislature so far as they authorize the taking of water rights for uses that are not public uses, are unconstitutional.^"^ The California court has upheld irrigation as a public use. The provision^ "^ allowing water to be taken for the supply of farming neighborhoods was upheld.^*'* 100 Article I, section 14. 10 1 In Cal. Code Civ. Proc, sec. 1238. 102 See Lux v. Haggin, 69 Cal. 255, 10 Pac. 674; Merrill v. South- side etc. Co., 112 Cal. 426, 44 Pac. 720; Los Angeles v. Pomeroy, 124 Cal. 597, 57 Pac. 585. lo.T In Cal. Code Civ. Proc, sec. 1238. 104 In Lux V. Haggin, 69 Cal. 255, 10 Pac. 674; and in Aliso etc. Co. V. Baker, 95 Cal. 268, 30 Pac. 537; Lindsay etc. Co. v. Mehrtens, § I'On LOSS OF RIGHT. 287 What (.-onstitiitt'S a fai'iiiin^- iieij;liborlioo(l is discussed in the cases just cited. Water can be taken for the use of irrigation districts.^*^^ The taking for a public water supply under Code of Civil Procedure, 1238, was upheld.^"" On the other hand, mining is not, in California, a public use, and the above statute authorizing water to be taken to run a group of mines is to this extent un- constitutional.^"^ The difference between mining and irrigation in this respect emphasizes the fact, shown throughout this whole subject, that mining is no longer the paramount industry in California, It was formerly held that the presence of percolating water was not an element that could be considered in estimating the value of property taken on eminent do- main.^"^ But under the new rule concerning percolat- ing waters, they are recognized as having not only value, but a great value. 97 Cal. 670, 32 Pac. 802; Fallbrook Irr. Dist. v. Bradley, 164 U. S. 112, 17 Sup. Ct. Rep. 56, 41 L. ed. 369. it»5 Ibid., and Cal. Stats. 1897, p. 254. See cases cited ante, sec. 21. loe In McCrary v. Baudry, 67 Cal. 120, 7 Pac. 264; Santa Cruz v. Enright, 95 Cal. 10.5, 30 Pac. 197. See Cal. Const., art. XIY, sec. 1. 107 Lorenz v. Jacob, 63 Cal. 73, and Consolidated etc, Co. v. Central Pac. Ey,, 51 Cal, 269, 108 Los Angeles v. Pomeroy, 124 Cal. 597, 57 Pac. 585. 288 WATER RIGHTS IN THE WESTERN STATES. CHAPTER XIII. THE COMMON LAW OF RIPAEIAX EIGHTS. 207. Appropriation and the common law. 208. Riparian rights under the California doctrine. A. NATURE OF RIPARIAN RIGHT. 20&. Part and parcel of riparian land — Not an easement. 210. Usufructuary solely. 211. May be sold or be the subject of contract. B. WHAT SUBJECT THERETO. 212. In general. 213. Underground streams. 214. Percolating water under recent decisions. C. LIMITATIONS ON USE OF WATER. 215. In general. 216. Natural uses. 217. Artificial uses. 218. Apportioning. 219. Cannot be used on non-riparian land. 220. Return of surplus. : 221. Manner of use. D. PROTECTION OF THE RIGHT. i 222. In general. i 223. Diminution acceleration, pollution. i 224. Form of remedy. i 225. Pleading. E. LOSS OF RIGHT. \ 226. No abandonment. i 227. Adverse use. I 228. Eminent domain, § 229. By natural causes. F. DISTINCTION FROM APPROPRIATION. g 230. Distinctions recapitulated. § 231. Change of attitude toward appropriation in California. § 207 THE COMMON LAW OF RIPARIAN RIGHTS. 289 § 207. Appropriation and the Common Law. — It was at one time contended that appropriation of waters was a common-law doctrine, and passa<]^es in Blackstone were amonn^ the authorities relied upon.^ But that conten- tion has lonjj; since been refuted. The matter was ex- amined in Lux V. Hag-gin, with the following result :^ "Goddard, in his Law of Easements, page 251, de- clares: 'That all riparian owners of natural streams have a riparian right to the use of water as it flows past their lands, as long as they do not interfere with the natural rights of other riparian owners, and to sue for disturbance is now an established doctrine of the law.' He adds : 'The doctrine was not established until com- paratively modem times,' etc. He says, after referring to some of the earlier decisions, that the (apparent) theory of appropriation was much modified by various decisions 'as the nature of riparian rights was brought more fully under consideration'; citing in this connec- tion Mason v. Hill,-* and Cueker v. Cowper, 5 Tyrw. 103. He concludes : 'Appropriation of the water of flow- ing streams has thus gradually fallen from being con- sidered the means of acquiring important rights to being deemed of no importance whatever.' "Mr. Angell, how^ever, cites a case of as early a date as 32 Edward III, where an assize of nuisance was brought by A against B, for that B had made a trench from a river, and drawn away thereby a part of the water and stream another way from that in which it did formerly use to run ; and the assize passed for the plain- tiff ; and it was adjudged that the water should be re- moved to its ancient channel at the cost of the defend- 1 Ante, sees. 7, 38. 2 69 Cal. 255, at 389, 10 Pac. 674. 2a 3 Barn. & Ailol. 304. Water Rights— 19 290 WATEE EIGHTS IN THE WESTEEN STATES. § 208 ant. (Angell on Watercourses, 93. See also Yearbook, 14 Henry YIII, 31, referred to by Angell.) "In Chasemore v. Ricliards, 7 H. L. Cas. 381, Lord Winsleydale declares : 'We may consider, therefore that this proposition is indisputable, that the right of the proprietor to the enjoyment of a watercourse is a nat- ural right, and is not acquired by occupation,' etc. "In examining the numerous cases which establish that the doctrine of 'appropriation' is not the doctrine of the common law, we meet an embarrassment of abun- dance." The contention that the doctrine of appropriation was recognized by the common law is disposed of by Judge Cooley^ in the following words: " . . . . We may dis- miss from the mind the fact that the plaintiff had first put the waters of the stream to practical use, since that fact gave him no superiority in right over the defend- ant. The settled doctrine now is that priority of ap- propriation gives to one proprietor no superior right to that of the others, unless it has been continued for a period of time, and under such circumstances, as would be requisite to establish rights by prescription."* § 208. Riparian Rights Tinder the California Doctrine. — Because of the co-ordinate position of the system of ap- propriation and that of riparian rights, under the Cali- fornia doctrine, as in force in California and in other States, as elsewhere discussed^ some words should be added regarding the latter system. 3 In Dumont v. Kellog, 29 Mich. 420, 18 Am. Eep. 102. 4 Citing Piatt v. Johnson, 15 Johns. 213, 8 Am. Dec. 233; Tyler v. Wilkinson, 4 Mason, 397, Fed. Cas. No. 14,312; Oilman v. Tilton, 5 N. H. 231; Pugh v. Wheeler, 19 N. C. (2 Dev. & B.) 50; Hartzall V. Sm, 12 Pa. St. 248; Gould v. Boston Dock Co., 13 Gray, 442; Wood V. Edes, 2 Allen, 578; Parker v. Hotchkiss, 25 Conn. 321; Heath V. Williams, 25 Me. 209, 43 Am. Dec. 265; Snow v. Parsons, 28 Vt. 463, 69 Am. Dec. 723; Bliss v. Kennedy, 43 Til. 67; Cowles v. Kidder, 24 N. H. 378, 57 Am. Dec. 287. 5 Ante, sees. 18, 23, 33. § 208 THE COMMON LAW OF RIPARIAN RIGHTS. 291 The two systems come in contact in many places, such as the ri^lit of prior claimants based on one system to be protected against later claims based on the other ; the right to a]>pr(>i)riate the surplus over what is needed by the riparian ])roi)rietor;'^ the right of the riparian proprietor to riparian rights in the surplus over prior appropriations." The field is an old and extensive one, on which there is far more decided law than on the law of appropria- tion. Only the general principles can be here stated in order to contrast them with the law of appropriation. The statement is confined to some of the decisions of supreme court of California. California has developed nothing peculiar on the substance of riparian rights.* The general mass of the common-law cases of other jur- isdictions are freely cited in the California courts. There are no innovations. In some cases it is said that allowing irrigation as a reasonable use by a riparian owner was peculiar to the West,^ but in Lux v. Haggin^*^ 6 Supra, sec. 33 et seq., and Edgar v. Stevenson, 70 Cal. 285, 1] Pac. 704; Modoc etc. Co. v. Booth, 102 Cal. 151, 36 Pac. 431. T Supra, sec. 33 et seq.; Barrows v. Fox, 98 Cal. 63, 32 Pac. 811; Faulkner v. Rondoni, 104 Cal. 140, 37 Pac. 883. 8 Unless the rule of Katz v. Walkinshaw, 141 Cal. 116, 99 Am. St. Rep. 35, 70 Pac. 663, 74 Pac. 766, applying (apparently) those rules to underground water. 9 "But in some of the Western and Southwestern States and Ter- ritories, where the year is divided into one wet and one dry season, and irrigation is necessary to successful cultivation of the soil, the doctrine of riparian ownership has, by judicial decision, been modi- fied, or, rather, enlarged, so as to include the reasonable use of natural water for irrigating the riparian land, although such use may ap- preciably diminish the flow down to the lower riparian proprietor. And this must be taken to be the established rule in California, at least, where irrigation is thus necessary." Harris v. Harrison, 93 Cal. 676, 29 Pac. 325. Compare, also, Lobdell v. Simpson, 2 Nev. 274, 90 Am. Dec. 537. 10 69 Cal. 255, at 39S et seq., 10 Pac. 674. 292 WATER RIGHTS IN THE WESTERN STATES. § 209 the question is thoroughly examined and it is shown that there is nothing in this peculiar to the West. Lux V. Haggin, 69 Cal. 255, 10 Pac. 674, is the leading Cali- fornia case upon the whole subject of riparian rights.^^ A. NATURE OF RIPARIAN RIGHT. § 209. Part and Parcel of Riparian Land — Not an Ease- ment. — Unlike an appropriation, riparian rights need no act of the owner to acquire them; they attach to the land bordering on the stream of their own accord. The right thereto is said to be a natural right.^^ In ancient times when the law was being shaped, the use for drink- ing purposes was in mind, and to deprive the land owner of that was not to be thought of. It is a natural right similar to the right to support from land adjoin- ing, a natural attribute of the land itself in its natural state. It is part and parcel of the land, acquired by virtue of ownership of the land, without any special formalities of any kind.^^ It passes ipso facto with the land on a sale, as part and parcel thereof.^ ^ A deed of land with warranty includes, without more, a war- ranty of riparian rights, but does not necessarily in- 11 See, also, the Nevada case of Vansickle v. Haines, 7 Nev. 249. 12 The designation as a natural right is fixed in the law. That such things as natural rights, such as the right to breathe the air, or to drink water, or to enjoy personal liberty, exist because of the divine law or the law of nature, is a doctrine of the philosophers of the eighteenth century; and we find natural rights one of the funda- mental divisions of rights in Blackstone's Commentaries. The doctrine of natural or absolute rights is hardly in favor to-day. However, as a natural attribute of the land, a natural part thereof, the designation of the riparian right as a natural right is not un- expressive, though that is not strictly its original meaning. 13 Lux v. Haggin, 69 Cal. 255, at 390, 10 Pac. 674; Bathgate v. Irvine, 126 Cal. 135, 77 Am. St. Rep. 158, 58 Pac. 442. 14 Lux v. Haggin, 69 Cal. 255, at 430, 10 Pac. 674. §§ 210, 211 THE COMMON LAW OF RIPARIAN RIGHTS. 293 elude a warranty of a right by appropriation.^' It is not an easement or appurtenance.^'^ § 210. It is Usufructuary Solely. — There is no owner- ship of the water itself under the doctrine of riparian rif^htSj any more than under the doctrine of appropria- tion. The right is to a use and flow merely, a right to use the water as naturally following ownership of the land,^'^ just as riparian owners have a right to fish in the stream, but do not own the fish swimming tliere.^** The riparian owner usually owns the bed to the middle of the stream, but the rig'lit is independent of that fact and exists also in navigable streams, where the title to the bed of the stream is in the State.^^ § 211. May be Sold or be the Subject of Contract. — A ri- parian owner may grant the water to one person and the land to another, which grant will be binding between the parties,^^ or may retain the land and grant away the wat«r to another.^^ Other riparian proprietoi'S may, it is true, complain if their rights are infringed by this,^^ but if all join in it or none are injured in their use of the water, it is ix'rfectly valid.^^ The riparian right 15 Dalton V. Bowker, 8 Nev. 190. 16 Lux V. Hagf^in, 69 C'al. 255, at 293, 10 Pac. 674; Vernon ete. Co. V. Los Angeles, 106 Cal. 237, 39 Pac. 762; Pomeroy on Riparian Rights, see. 9. 17 Lux V. Haggin, 69 Cal. 255, 10 Pac. 674. 18 People V. Truckee etc. Co., 116 Cal. 397, 58 Am. St. Rep. 183, 48 Pac. 374, 39 L. R. A. 381. 19 See ante, sec. 66, and Lux v. Haggin, 69 Cal. 255, at 391, 10 Pac. 674. 20 Painter v. Pasadena etc. Co., 91 Cal. 74, 27 Pac. 539. 21 Rose V. Mesmer, 142 Cal. 322, 75 Pac. 905. 22 Gould V. Stafford, 91 Cal. 146, 27 Pac. 543. 23 Churchill v. Baumann, 104 Cal. 369, 36 Pac. 93, 38 Pac. 43; Fuller V. Azusa etc. Co.. 138 Cal. 204, 71 Pac. 98; Rose v. Mesmer, 142 Cal. 322, 75 Pac. 905. 294 WATER RIGHTS IN THE WESTERN STATES. §§ 212-214 may likewise be reserved in a conveyance of the land and separated from the land in that way.-^ As a result of this freedom of contract, where all the riparian rights on a stream are dealt with together in one contract, a right similar in result to an appropria- tion may arise, since all who could complain have con- tracted away their rights. A severance of riparian rights by a sole riparian proprietor hence is a close counterpart of an appropriation. An appropriation is, on the other hand, a grant from the United States so far as it is a riparian proprietor.^^ B. WHAT SUBJECT THERETO. § 212. In General. — Riparian rights exist in streams and ponds and lakes.^*' What constitutes a water- course depends on the same principles as those set forth under the law of appropriation.^"^ § 213. Underground Streams. — Probably the landowner has the rights of a riparian owner in streams flowing in a defined course under his ground.^^ The point was left open in Hale v. McLea, 53 Cal. 578, but the general principle is established that underground streams are treated on the same principles as surface streams.^^ § 214. Percolating Water Under Recent Decisions. — We have already discussed the new rule of percolating water so far as it directly concerns appropriation. It 24 Walker v. Lillingston, 137 Cal. 401, 70 Pac. 282. 25 Ante^ sec. 24. 26 Lux V. Haggin, 69 Cal. 255, 10 Pac. 674. 27 Ante, sec. 65. 28 Pomeroy on Riparian Rights, sec. 63; Yarwood v. West Los ■ Angeles etc. Co., 132 Cal. 204, 64 Pac. 275; and ante, sec. 72. 29 Ante, sec. 73. The point was mentioned in Katz v. Walkinshaw, 141 Cal. 116, at 140 and 149, 99 Am. St. Rep. 35, 70 Pac. 663, 74 Pac. 766. § 214 THE COMMON LAW OF RIPARIAN RIGHTS. 295 would be ^oino- too far afield to discuss the new law in other aspects. Reference must be made to Katz v. Walkinshaw, 141 Cal. 116, 99 Am. St. Rep. 35, 70 Pac. 663, 74 Pac. 766, and the following? cases since decided on the same principle: McClintock v. Hudson, 141 Cal. 275, 74 Pac. 849 ; Hose v. Mesmer, 142 Cal. 322, 75 Pac. 905; Cohen v. La Canada etc. Co., 142 Cal. 437, 76 Pac. 47; Santa Barbara v. Gould, 143 Cal. 421, 77 Pac. 151 ; Montecito etc. Co. v. Santa Barbara, 144 Cal. 578, 77 Pac. 1113. In a general way, it may be said that all landowners have a natural right, in the sense that riparian rights are natural rights, to a reasonable use, on their own land, of the water percolating under their land and not appropriated by others as elsewhere discussed.^^ It is reasonable to dig wells to get at it. It is not reason- able to take so much as will interfere with the use by other landowners, in order to use the water oneself. How far the right is limited to cases of an underground reservoir of saturation, resembling subterranean ponds or lakes, is not settled.^ ^ This landowner's right to percolating water closely resembles riparian rights in its characteristics. As a matter of theory, however, Mr. Justice Temple's view in Katz V. Walkinshaw is otherwise. Following the old law as much as possible, he believed the landowner has property in the water itself and not a mere usufructuary right; that the limitation on use was a qualification of ownership, whereas before the qualification had been absent ; but that actual ownership of the water remained, and not a mere use and flow. 30 Ante, sec. 78. 31 Ante, sec. 79. 296 WATEE EIGHTS IN THE WESTEEN STATES. §§ 215-217 C. LIMITATIONS ON USE OF WATER. § 215. In General. — The characteristic feature of ri- parian rights is that the purpose, amount and manner of use is limited in all directions so as to be within the reasonable needs of the land to which the right attaches. Reasonable uses include two great classes, natural uses and artificial uses.^^ § 216. Natural Uses. — Natural uses are those arising out of the necessities of life on the riparian land, such as household use, drinking, watering domestic animals. For these purposes the riparian owner may take the whole stream if necessary, leaving none tO' go down to lower riparian proprietors or lower subsequent appro- priators.^^ "It appears to be law that where all the water of a stream is needed for domestic purposes and for water- ing cattle, and is thus consumed by one proprietor, the law allows such use."^* § 217. Artificial Uses. — Artificial uses are all those that do not minister directly to the necessities of life upon the land ; such as uses for the purpose of improve- ment, trade or profit. This includes diversion for ir- rigation, the running of machinery, etc.^^ It includes 32 Wiggins v. Muscupiabe etc. Co., 113 Cal. 182, 54 Am. St. Rep. 337, 45 Pac. 160, 32 L. E. A. 667; Lux v. Haggin, 69 Cal. 255, at 408, 10 Pac. 674. 33 Lux V. Haggin, 69 Cal. 255, at 395 and 407, 10 Pac. 674; Stan- ford V. Felt, 71 Cal. 249, 16 Pac. 900; Gould v. Stafford, 77 Cal. 66, 18 Pac. 879; Smith v. Corbit, 116 Cal. 587, 48 Pac. 725; Wiggins v. Muscupiabe etc. Co., 113 Cal. 182, 54 Am. St. Eep. 337, 45 Pac. 160, 32 L. R. A. 667; Pomeroy on Riparian Rights, sees. 129, 134; Alta etc. Co. V. Hancock, 85 Cal. 219, 20 Am. St. Rep. 217, 24 Pac. 645; Chauvet V. Hill, 93 Cal. 407, 28 Pac. 1066. 34 Stanford v. Felt, 71 Cal. 249, at 251, 16 Pac. 900. 35 Lux V. Haggin, 69 Cal. 255, 10 Pac. 674. § 217 THE COMMON LAW OF RIPARIAN RIGHTS. 297 the watorinf? of lari^o bands of cattle, which is not within tlie natural uses.'*'' For thc^e uses the riparian owner can never take all to the exclusion of others. '^''^ He can take only what is reasonable, with due regard to the uses of others on the same stream."*^ What is a reasonable use for artificial i)urposes is a question of fact to be decided in each case.^^ The decision must be made "reference being had to the use required by the others."^" "Where two persons own land along the line of a watercourse, the measure of their rights is not neces- sarily controlled solely by the length of their respective frontages on the stream. Many other thing's may enter into the question. One may have a tract of land of such character that but little use could be made of the water upon it, while the land of the other may all be so situated that it could be irrigated with profit and advantage. In Harris v. Harrison, 93 Cal. 681,^*^* it is said : an such a case, the length of the stream, the vol- ume of water in it, the extent of each ownership along the banks, the character of the soil owned by each con- testant, the area sought to be irrigated by each — all these, and many other considerations, must enter into the solution of the problem.' And the general rule is there stated to be, in cases where there is not water 36 Lux V. Haggin, 69 Cal. 255, at 407, 10 Pac. 674. See 79 Am. Dec. 642, note. 37 Learned v. Tangeman, 65 Cal. 334, 4 Pac. 191; Gould v. Staf- ford, 77 Cal. 66, 18 Pac. 879; Alta etc. Co. v. Hancock, 85 Cal. 219, 20 Am. St. Rep. 217, 24 Pac. 645; Harris v. Harrison, 93 Cal. 676, 29 Pac. 325. 38 Ibid.: and Lux v. Haggin, 69 Cal. 255, at 394, 397, 10 Pac. 674; Stanford v. Felt, 71 Cal. 249, 16 Pac. 900; Heilbron'v. Land and Water Co., 80 Cal. 189, 22 Pac. 62. 39 Ibid. 40 Lux V. Haggin, 69 Cal. 255, at 311, 10 Pac. 674. 40a 29 Pac. 325. 298 WATER EIGHTS IN THE WESTERN STATES. § 218 enough to supply the wants of both, that each owner has the right to the reasonable use of the water, taking into consideration the rights and necessities of the other,"-'! "Under the rules of the common law, the riparian pro- prietors would all have the right to a reasonable use of the waters of a stream running through their respective lands for the purpose of irrigation. It is declared in all the authorities upon this subject that it is impos- sible to lay down any precise rule which will be applic- able to all cases. The question must be determined in each case with reference to the size of the stream, the velocity of the water, the character of the soil, the num- ber of proprietors, the amount of water needed to irri- gate the lands per acre, and a variety of other circum- stances and conditions surrounding each particular case ; the true test in all cases being, whether the use is of such a character as to materially affect the equally beneficial use of the waters of the stream by the other proprietors."^^ § 218. Apportioning. — If the water is not enough for continual use by all, no one of the owners has a right to deprive the others of it on that account for any of the artificial uses ; unlike appropriations the riparian rights of all owners through whose land the stream flows are equal in this. A court of equity will, in such a case, apportion the water so that each can use all for a time or assign to each the continual use of his share only of what there is.**^ It is said that this will be done 41 Southern Cal. etc. Co. v. Wilshire, 144 Cal. 68, at 71, 77 Pac. 767. See, also, Gutierrez v. Wege, 145 Cal. 730, 79 Pae. 449. 42 Jones V. Adams, 19 Nev. 78, 3 Am. St. Rep. 788, 6 Pac. 442. 43 Harris v. Harrison, 93 Cal. 676, 29 Pac. 325; Wiggins v. Mus- cupiabe etc. Co., 113 Cal. 182, 54 Am. St. Rep. 337, 45 Pac. 160, 32 L. R. A. 667; Smith v. Corbit, 116 Cal. 587, 48 Pac. 725. § 219 THE COMMON LAW OF RIPARIAN RIGHTS. 299 with peroolatino- waters as woll as other kinds.-*^ In AMo-^ius V. Muscupiabe etc. Co.^-»" the court says: ''Whenever it shoiihl appear from the circumstances of the case that the only method by which either proprietor could have a rcasonalde use of the stream would be to allow to each its full tiow for a reasonable time, the only equitable adjudgment of their rights would be to thus apportion the flow. Whether this apportionment should be for alternate weeks oi- alternate days, or for a specific portion of each day, must Im determined by the facts of each case "^^ § 219. Cannot be Used on Non-riparian Lands. — The use is not only limited to a reasonable amount in developing the land, but it must be the riparian land to which the right attaches that the water is used for ; not for distant or non-riparian lands.^" Water cannot, under the doc- trine of rii)arian ownership, be used to irrigate non- riparian land.^" What constitutes riparian land is a question of fact in each case.^^ The ownership or legal title to the land is not the test,^** even if contiguous to riparian land owned by the same claimant ;''^' and con- 44 Katz V. Walkinshaw, 141 Cal.. at 136, 99 Am. St. Rep. 35, 70 Pac. 663, 74 Pac. 766. See Glasell v. Verdugo, 108 Cal. 503, 41 Pae. 403. 44a 113 Cal. 182, at 193, 54 Am. St. Rep. 337, 45 Pac. 160, 32 L. R. A. 667. 45 Accord Gutierrez v. Wege, 145 Cal. 730, 79 Pac. 449. 46 Gould V. Eaton, 117 Cal. 539, 49 Pac. 577, 38 L. R. A. 181; Pomeroy on Riparian Rights, sec. 132. 47 Gould V. Stafford, 77 Cal. 66, 18 Pac. 879. 48 Ventura etc. Co. v. Meiners, 136 Cal. 284, 89 Am. St. Rep. 128, 68 Pac. 818. 49 Bathgate v. Irvine, 126 Cal. 135, 77 Am. St. Rep. 158, 58 Pac. 442. r.o Boohmer v. Big Rock etc. Co., 117 Cal. 19. 48 Pac. 908; Gould V. Stafford, 77 Cal. 66, 18 Pac. 879; but see Alta etc. Co. v. Han- cock, 85 Cal. 219, 20 Am. St. Rep. 217, 24 Pac. 635, semble contra. 300 WATER RIGHTS IN THE WESTERN STATES. §§ 220, 221 seqiiently water cannot be taken to irrigate distant lands merely because the claimant also owns riparian land.^^ It is certain that land beyond a watershed whence the water could not flow back to the original stream is non- riparian, and no use taking the water beyond a water- shed is sanctioned by the law of riparian rights.^^ This applies to natural uses with the same force as to artificial uses.^^ § 220. Return of Surplus. — While a riparian owner may divert the water within the above limitations, the surplus must in any case be returned to the stream, and must be returned above the upper line of the land of lower claimants.^^ The manner in which it is returned is immaterial. ^^ § 221. Manner of Use. — Reasonableness is the test here as in other limitations on riparian use. There must be no waste.^^ The method of taking the water is im- material.^'^ It is no objection to pumps that the water is raised to a level to which it would not otherwise flow, so long as it is properly used at that level.^^ 51 Ibid. 52 Chauvet v. Hill, 93 Cal. 407, 28 Pac. 1066; Silver Creek etc. Co. V. Hayes, 113 Cal. 142, 45 Pac. 191; Bathgate v. Irvine, 126 Cal. 136, 77 Am. St. Rep. 158, 58 Pac. 442; Southern California etc. Co. V. Wilshire, 144 Cal. 68, 77 Pac. 767. 53 Bathgate v. Irvine, 126 Cal. 135, 77 Am. St. Rep. 158, 58 Pac. 442. 54 Bathgate v, Irvine, 126 Cal. 135, 77 Am. St. Rep. 158, 58 Pac. 442. 55 Gould V. Eaton, 117 Cal. 539, 49 Pac. 577, 38 L. R. A. 181. . 50 Afitc, sees. 50, 127. 57 Ante, sees. 125, 126. 58 Charnock v. Higuerra, 111 Cal. 473, 51 Am. St. Rep. 195, 44 Pac, 171, 32 L. R. A. 190. 222-224 THE COMMON LAW OF RIPAKIAN RIGHTS. 301 D. PROTECTION OF THE RIGHT. § 222. In General. — As pointed out under the discus- sion of protection of a rij^ht of appropriation, the test of wrongfulness in riparian rights is whether the use complained of is unreasonable, giving as much regard to the one owner sls to the other, their rights being equal, as contrasted with the exclusive right obtained by ap- propriation, into which the question of reasonableness along these lines does not enter. § 223. Diminution, Acceleration, Pollution. — Here, as elsewhere, the test is whether the act complained of is a reasonable one, reference being had to the use required by others, and all on the stream being given equal con- sideration. To cut trees and allow them to fall into a stream and interrupt it, or to decay there and pollute it, is not within the reasonable uses allowed a riparian owner, and he will be enjoined.^'' A lower riparian owner may get an injunction against city sewage.^'^ For a discussion of the question in detail, reference should be made to text-books on riparian rights. § 224. Form of Remedy.— The requisites for injunc- tions and other actions will be found similar to those discussed ante.^^ There are the following differences, however : Any unreasonable use by another is actionable im- mediately without damage, even though the plaintiff is not using the water himself. "^^ rpj^jg jg because the 59 Fisher v. Feige, 137 Cal. 39, 92 Am. St. Rep. 77, 69 Pac. 618, 59 L. R. A. 333. 60 Peterson v. Santa Rosa, 119 Cal. 387, 51 Pac. 557. 61 Sec. 67. See Lux v. Haggin, 69 Cal. 255, 10 Pac. 674. 62 Anaheim etc. Co. v. Semi-Tropic etc. Co., 64 Cal. 185, 30 Pac. 623; Stanford v. Felt, 71 Cal. 249, 16 Pac. 900; Heilbron v. Land Co., 302 WATEE EIGHTS IN THE WESTEEN STATES. §§ 225, 226 riparian right is part and parcel of the land, not de- pending on actual use. On the other hand, an appro- priation depends on beneficial use, and no action will lie for use by others when the appropriator is not him- self using the water.^^ In Katz v. Walkinshaw,^^* there is a remark contra to this as to percolating water, say- ing that the landowner will have no right to restrain an unreasonable use thereof by others if not using it him- self; suggesting that he could have a decree quieting title to use it whenever he chooses. A reversioner may sue.*** § * 225. Pleading. — The riparian right must be specifi- cally alleged. It is not enough merely to allege owner- ship of the land,^^ or merely to allege that the stream passes through your land.^^ A count alleging a right as appropriator will not support a judgment as riparian owner.®^ E. LOSS OF RIGHT. § 226. No Abandonment. — Riparian rights cannot be lost by abandonment. In this is seen an essential dif- ference between riparian rights and appropriations. The latter depend on continued beneficial use and are conditional; the former depend on no such condition, 80 Cal. 189, 22 Pac. 62; Last Chance etc. Co. v. Heilbron, 86 Cal. 1, 26 Pac. 523; Modoc etc. Co. v. Booth, 102 Cal. 151, 36 Pac. 431; Vernon etc. Co. v. Los Angeles, 106 Cal. 237, at 256, 39 Pac. 762; Gould V. Eaton, 117 Cal. 539, 49 Pac. 577, 38 L. E. A. 181; Bath- gate V. Irvine, 126 Cal. 136, 77 Am. St. Eep. 158, 58 Pac. 442; Southern California etc. Co. v. Wilshire, 144 Cal. 73, 77 Pac. 767. C3 A?ite, sec. 30; Pomeroy on Eiparian Eights, sec. 7; California etc. Co. V. Enterprise etc. Co. (C. C. S. Dist. Cal.), 127 Fed. 741. 63a 141 Cal. 116, at 136, 99 Am. St. Eep. 35, 70 Pac. 663, 74 Pac. 766. 64 Gould V. Stafford, 91 Cal. 146, 27 Pac. 543. 65 Eiverside etc. Co. v. Gage, 89 Cal. 410, 26 Pac. 889. 66 Lobdell V. Simpson, 2 Nev. 274, 90 Am. Dec. 537. 67 Supra, sec. 170. § 227 THE COMMON LAW OF EIPARIAN RIGHTS. 303 but are absolutely attached to the land as part thereof, and can no more be lost by abandonment than can the trees growinpj there. The appropriation arises from a special conditional gi*ant from the ji^overnment, but the riparian rioht arises from ownership of the land. Ri- parian rip;hts remain though the water is put to no use at all.*^ And even if a later comer below makes use of the water, he cannot complain when the riparian owner starts to use it later.®^ § 227. Adverse Use. — l^iparian rij^hts may be lost by adverse use; and this claim is the favorite last resort of claimants to the use of water; it will be found discussed in innumerable cases. In general, the requisites are the same as those elsewhere discussed,"'' The distinction between upper and lower use must be kept in mind. A lower use, since it in no way inter- feres with the natural flow above, is no invasion of a right above. No action would lie, and so no prescrip- tive right nor estoppel can arise below stream against an upper riparian owner." ^ A notice of appropriation by a lower claimant is hence immaterial. '^^ g^^ ^n un- reasonable use above will start the running of a pre- scription, as it is actionable immediately.'^^ It must, however, be unreasonable; a use of the surplus above is 68 Hargrave v. Cook, 108 Cal, 72, 41 Pac. 18, 30 L, R. A. 390. 69 Bathgate v. Irvine, 126 Cal. 136, 77 Am. St. Eep. 158, 58 Pac. 442, and cases fiits of individuals. The water is taken to a locality where it is used; and after bein^ so used, it finds its way to other mininjr localities, where it is aji'ain used. The effect of the di- version is not to diminish the number of times the water may be used. In the majority of cases, it is used as often, and upon the whole, as profitably, as if it had never been diverted, but had continued to How down its natural channels. The <>eneral usefulness of the ele- ment is not impaired by the diversion. It may be very safely assumed that as much good, if not more, is ac- complished by the diversion, as could have been at- tained, had such diversion never occurred. In fact, we must, in reason, presume that the water is taken to richer mininji' localities, where it is more needed, and, therefore, the diversion of the stream promotes this h'adin<; interest of the State. It was upon the principle, that the leading; interest of the superior proprietor was attaineil by these diversions, that the decisions of this court sustainined for public use without just compensation havin<»- been first made to, or paid into court, for tlie owner, and no ri^^ht of way shall be appropriated to the use of any corporation other than municipal until full compensation therefor be first made in money or ascertained and paid into court for the owner, irrespective of any bcnetit from any improve- ment pi'(>j)()S('(l \)\ such coi-ixn'alion, which ciit to the use of runninji' water flowinj; in a river or stream, or down a canyon or ravine, may be ac([uired by appropriation. En. March 21, 1872. Section IJflJ. Appropriation must he for a Useful Purpose. The appropriation must be for some useful or beneficial purpose, and when the appropriator or his successor in interest ceases to use it for such a purpose, the right ceases. En. March 21, 1872. Section lJfl2. Faint of Diversioti may he Changed. The person entitled to the u.se may change the ]dace of diversion, if others are not injured by such change, and may extend the ditch, flume, pipe, or aqueduct by which the divei-sion is made to places beyond that where the first use was made. En. March 21, 1872. Section /'//-?. Water may he Turned into Xatural Chanui Is. The water appropriated may be turned into 3] 8 APPENDIX A. the channel of another stream and min<2:led with its water, and then reclaimed; but in reclaiming it the water already appropriated by another must not be diminished. En. March 21, 1872. Section l^Uf. First in Time, First in Right. As be- tween appropriators, the one first in time is the first in right. En. March 21, 1872. Section I'flo. Notice of Appropriation. A person desiring to appropriate water must post a notice, in writing, in a conspicuous place at the point of intended diversion, stating therein : 1. That he claims the water there flowing to the extent of (giving the number) inches measured under a four-inch pressure ; 2. The purposes for which he claims it, and the place of intended use; 3. The means by which he intends to divert it, and the size of the flume, ditch, pipe, or aqueduct in which he intends to divert it. A copy of the notice must, within ten days after it is posted, be recorded in the office of the recorder of the county in which it is posted. After filing such copy for record, the place of in- tended diversion or the place of intended use or the means by which it is intended to divert the water, may be changed by the person posting said notice or his as- signs, if others are not injured by such change. This provision applies to notices already filed as well as to notices hereafter filed. En. March 21, 1872. Amd. 1903, 361. Section U/IG. Work on Water Rights. Within sixty days after the notice is posted, the claimant must com- mence the excavation or construction of the w^orks in CALIFORNIA STATUTES. 319 which he intends to divert the water, or the survey, road or trail building, necessarily incident thereto, and must prosecute the work dili«,^ently and uninterruptedly to completion, unless temporarily interruptCKi by snows or rain ; provided, that if the erection of a dam has been recommended by the California debris commission at or near the place where it is intended to divert the water, the claimant shall have sixty days after the com- pletion of such dam in which to commence the excava- tion or construction of the works in which he intends to divert the water. En. :March 21, 1872. Amd. 1895, 70; 1903,390. Section lJ/17. Completion Defined. By "comple- tion" is meant conducting the waters to the place of in- tended use. En. March 21, 1872. Section IJflS. Doctrine of Relation Applied. By a compliance with the above rules the claimant's right to the use of the water relates back to the time the notice was posted. En. March 21, 1872. Section l.',19. Forfeiture. A failure to comply with such rules deprives the claimants of the right to the use of the water as against a subsecjuent claimant who com- plies therewith. En. March 21, 1872. Section lJf20. Rights of Present Claimant. Persons who have heretofore claimed the right to water, and who have not const rue ttn^l works in which to divert it, and who have not diverted nor applied it to some use- ful puri)ose, must, after this title takes efieect, and within twenty days thereafter, proceed as in this title provided, or their right cea.ses. En. :March 21, 1872. Section 1.',.>1. Rcmrdcr to Keep Book in \\l,i,-Ii to Record Notices. The recorder of each county must keep a book, in which he must record the noti((\s ])r()vided for in this title. En. March 21, 1872. 320 APPENDIX A. Section 1^22. Title not to Affect Rightfi of Riparian Proprietors. If the place of intended diversion or any part of the route of intended conYeyance of water so claimed, be within, and a part of, any national park, forest reservation, or other public reserv^ation, and be so shown in the notice of appropriation of said water, then the claimant shall have sixty days, after the orant of authority to occupy and use such park or reservation for such intended purpose, within which to commence the excavation or construction of said works; provided tliat within sixty days after the posting of said notice of appropriation, as provided in section 1415 of the Civil Code, the claimant shall in good faith commence (and thereafter diligently and ccmtinuously, except when temporarily interrupted by snow or rain, prosecute to completion) such surveys and other work as under the regulations governing such park or reservations, may be requircHl as preliminary to, or for use with, an applica- tion for such authority ; and provided also that the claimant shall in good faith on completion of said sur- vey and preliminary work, apply to the officer, board, or body, having charge of such park or reservation, for such authority, and shall thereafter, prosecute said ap- plication with reasonable diligence. En. March 21, 1872. Rep. 1887, 114. En. 1903, p. 397. Section 1422 formerly read as follows: ' ' The rights of riparian proprietors are not affected by the pro- visions of this title." In the Session of 1887 (Stats., p. 114), the year following the de- cision of Lux V. Haggin, section 1422 was repealed with the proviso "that the repeal of this section shall not in any way interfere with any rights already vested." The effect of this repeal has never been directly passed upon by the court, but many cases since then have affirmed the rights of riparian proprietors, following Lux v. Haggin. The fact that this repeal has not disturbed the California doctrine indicates that Lux v. Haggin is taken to have upheld riparian rights as much on constitutional principles as on section 1422 of the code. CALIFORNIA STATUTES. 321 In 1903 (Stats., p. 397) a new section 1422 was added, saying noth- ing of riparian proprietors. In the codes, however, the new section 1422 is printed as above. TITLE IX— HYDRAULIC MINING. Section lJi2Jf. Where Hydraidlc Mininf/ can he Car- ried on. The business of hydraulic mining may be car- ried on within the State of California wherever and whenever the same can be carried on without material injury to the navigable streams, or the lands adjacent thereto. En. Stats. 1893, 337. Section lJf25. Meaninq of Hijflraulic Mining. Hy- draulic mining, within the meaning of this title, is min- ing by means of the application of water, under pres- sure, through a nozzle, against a natural bank. En. Stats. 1893, 337. Miscellaneous Septions of the Civil Code. Sections 5-'t8-552, Civil Code. Concerning corpora- tions distributing water. Section 551, Civil Code. No canal, flume, or other appliance for the conducting of water must be so laid, constructed, or maintained as to obstruct any public highway ; and every person or corporation owning, main- taining, operating or using any such canal, flume, or ap- pliance, crossing or running along any public highway, must construct, maintain, and keep in repair such bridges across the same as may be necessary to the safe and convenient use of such highway by the public ; and on failure so to do, the board of super^'isors of the county, after seven days' notice in writing to said person or corporation, may construct or repair such bridge or bridg^^s, and recover of such person or corporation the amount of tlie expenditure made in so doing. Ea. March 21, 1872. Amd. 1905, 580. Water Eights— 21 322 APPENDIX A. Section 552, Civil Code. Right of Purchaser to Use Water for Irrigating. Whenever any corporation, or- ganized under the laws of this State, furnishes water to irrigate lands which said corporation has sold, the right to the flow and use of said water is and shall remain a perpetual easement to the land so sold, at such rates and terms as may be established by said corporation in pursuance of law. And whenever any person who is cultivating land, on the line and within the flow of any ditch owned by such corporation, has been furnished water by it, with which to irrigate his land, such per- son shall be entitled to the continued use of said water, upon the same terms as those who have purchased their land of the corporation. En. Stats. 1875-76, 77. Section 8^2, Civil Code. When two or more persons are associated by agreement in the use of a ditch, flume, pipe-line or other conduit for the conveyance of water, or who are using such ditch, flume, pipe-line or other conduit, or any part thereof, for the irrigation of land or for any other lawful purpose, to the construction of which they or their grantors have contributed, he is li- able to the others for the reasonable expenses of main- taining and repairing the same, and of distributing such water in proportion to the share to which he is en- titled in the use of the water. En. Stats. 1905, 600. (See Statute of 1889, infra.) Section 8//3, Ciiril Code. If any one of them neglects^ after demand in writing, to pay his proportion of such expenses, he is liable therefor in an action for contribu- tion, and in any judgment obtained against him inter- est from the time of such demand must be included. The action authorized by this section must be brought by any or all of the parties who have contributed more than his or their just proportion of such expenses, and may be joint or several, and therein plaintiff may re- CALIFORNIA STATUTES. 323 cover as costs, reasonable counsel fees, to be fixed by the court. En. Stats. 1905, GOO. (See Statute of 1889, infra. ) Code of Civil Procedure. Section 532, Code of Civil Procedure In all ac- tions p('n(lin«»', or which may hereafter be brouo-ht, when an injunction or restrainin*;' order has been or may be granted or applied for, to prevent the diversion pending the litigation, of water used or to be used for irrigation or domestic i)ur])oses only, if it be made to appear to the court that great damage will be suffered by the de- fendant in case the injunction is continued, and that the plaintiff can be fully compensated for any damages he may sutt'cr by reason of the continuance of the acts of the defendant during the pendency of the litigation, the court, in its discretion, may dissolve or modify the in- junction, upon the defendant giving a bond, with sure- ties to be approval by the judge, and in such amount as may be fixed by the court or judge, conditionc^l that the defendant will pay all damages which the plaintiff may suffer bv reason of the continuance during the litijia- tion of the acts complained of. Upon the trial the amount of such damages shall be ascertained, and in case judgment is rendered for the plaintiff, the amount fixed as such damages shall be included in the judgment, together with reasonable attorney's fees. Upon a suit brought on the bond the amount of damages as fixed in said judgment shall be conclusive upon the sureties. En. Marcli 11, 1872. Amd. 1887, 241. Penal Code. Penal Code, sections 3 JfJ, 377,, /,20, J,99,592, 607, 629. ( See text, sec. 172. ) 324 APPENDIX A. Miscellaneous Statutes. Statutes of 1854, P^ge 76, last amended 1862, p. 234, appointed water commissioners for a few counties, viz, : Contra Costa, Colusa, Los Angeles, Napa, San Bernar- dino, San Diego, Santa Barbara, Solano, and Tulare only. Pol. Code, sec. 19, continues in force acts con- cerning water commissioners. Statutes of 1877-78, page 195, concerning waste of water from artesian wells. A similar statute was held unconstitutional in Huber v. Merkel, 117 Wis. 355, 98 Am. St. Rep. 933, 94 N. W. 354. Statutes of 1889, page 202: Section 1. When two or more persons are associated by agreement in the use of a ditch or flume, or are using for the irrigation of land a ditch or flume, to the con- struction of which they or their gTantors have contrib- uted, each of them shall be liable to the other for the reasonable expense of maintaining and repairing the same in proportion to the share in the use of the water to which he is entitled. Section 2. If any of them refuse or neglect, after de- mand in writing, to pay his proportion of such expenses, he shall be liable therefor in an action for contribution in the nature of an action on the case, and in any judg- ment obtained against him, interest from the time of such demand at the rate of two per cent per month may .be included. Section 3. If any of them willfully appropriate to his own use more than his proportionate share of the water from such ditch or flume, to the detriment of his associates, or any of them, he shall be liable in damages in treble the value of the water so appropriated in ex- cess of his proper share. CALIFORNIA STATUTES. 325 Section J/. The actions provided for in Kootions two and three may be brou<>ht by any or either of the par- ties injured, and may be joint or several. Section 5. This act shall take effect from and after its passage. Statutes of 1905, page 152, chapter 157, provides for co-operation of the State of California with the Fed- eral f»()vernment's irrigation plans under the National Irrigation Act, provided it does not "interfere with the water already appropriated or in reservoirs or now in use for irrigation pui'poses, or domestic purposes, under the laws of this State." Irrigation District Statutes. The first legislation in this line was the Statute of 1871- 72, p. 945. This is probably repealed by the Act of 1897. (See Gen. Laws, p. 498.) The first elaborate act for the formation of irrigation districts was the Wright Act of 1887, p. 29. All previous acts were repealed by the Act of 1897, p. 254. (Gen. Laws, p. 498.) The pres- ent law is briefly as follows : Act 1897, pp. 254, 394. Am. 1901, p. 815. Supplemented 1903, p. 3. Am. 1905, c. 33. Purpose. To allow organization by owners of laud susceptible of one sj'stem of irrigation. Proceedings to Organise. l*etitiou by owners to board of sup<'rvisors; publislicd. Hearing before supervisors, with right of objectors to appeal to superior court. Five subdivisions formed by order of supervisors, one director to be elected bv each subdivision. 326 APPENDIX A. Election held to obtain final assent of owners and to elect officers. Supervisors declare the district duly or- ganized, if carried, and copy of this order recorded. Officers. Board of five (or in some cases, three) di- rectors, assessor, tax collector, treasurer. Directors. Classified by length of tenure (some two, some four years; sec. 20.) Must meet monthly. Rec- ords open for inspection. Must publish annual reports. Control and carry on the irrigation works. Powers enumerated in detail. Director must be a resident and freeholder of the district. Property. District may acquire water rights by con- demnation or purchase. (Sec. 15.) Title to property is in the district in trust. (Sec. 15. See Merchants' Bank v. Escondido etc. Irr. Dist., 144 Cal. 329.) Is given all waters belonging to the State within the dis- trict. (Sees. 53-56.) Has rig'ht of way for canals, etc., but otherwise must not interfere with navigation or mining (Sec. 64) or with existing vested rights. (Sec. 65.) Operations. Controlled by directors, who may estab- lish by-laws and regulations, to be printed and dis- tributed. Is in public service. Water shall be appor- tioned in proportion to the money last assessed to owner for district purposes. In time of scarcity, water apportioned between districts by a board of water com- njissioners c(msisting of the chairmen of the boards of directors of all districts affected. (Sec. 62.) iNIay contract for construction work. (Sees. 53-56.) May lease the works. Must advertise for bids. Lease must not be for longer than twenty-five years. For- feited for non-payment of rent for ninety days. (Sec. 100.) See, also. Stats. 1893, p. 295. CALIFORNIA STATUTES. 327 Election. ( Sees. 19-28.) Every two years. Vacancies filled by board of directors. Detailed provisions gov- erning elections. Bonds-. ]May issue bonds. (Sec. 30.) First sub- mitted at an election. Issued in ten series. May as- sess to pay interest and principal. Bonds may be re- deemed. (Sec. 52.) Validity of bonds and organiza- tion may be tested and confirmed in suit in superior court, on bebalf of district or individual, and has the effect of a procinnling in rem, summons being published. (Sec. 68.) Bonded debt may be reduced. Must be balloted on. Must have consent of bondholders to take up outstanding bonds. (Sec. 98 et seq.) See Stats. 1891, p. 53. Assessments. All real property may be assessed to raise funds. (Sec. 33.) If voted at polls, assessor must perform duties. (Prescribed in detail.) Direc- tors act as board of equalization. After property duly assessed, directors must levy the assessment. County oflicials may act if district officials refuse to assess and levy when needed. The avssessment is a lien on the property assessed. Delinquent notice, delinquent sale, and redemption after sale provided for in detail. Re- demption must be within twelve months. Inclusion and Exclusion of Land after Organization. Land may be excludeil. Consent of bondholders or de- cree of court re([nired. If excluded, is released from liens thereon. (Sees. 74-78.) Land may be included. Petition. Ballot. (Sec. 85 et seq.) Sarin;/ ^^//^sY^s'. Not affect navigation or mining ex- ce])t to give right of way for canals, etc. ( Sec. G4. ) Not aff\H't existing rights. (See. G5.) Not affect existing districts. (Sec. 109.) 328 APPENDIX A. Dissolution. (Stats. X903, p. 3.) Petition to board of directors. Statement made of assets and indebtedness and plan of settlement. Election thereon, which must be carried by two-thirds vote. Directors then petition su- perior court. Summons published. Has effect of a prc^- ceeding in rem. Corporation under general laws may take over the property. Decree rendered settling rights of creditors. When all settled the court shall enter a final decree declaring district dissolved. Statutes for the formation of irrigation districts based on the Wright Act of California, exist in Colorado (3 M. A. S., 1905 ed., sec. 2309a et seq.), Idaho (Stats. 1899, p. 408; Stats. 1903, p. 150), Kansas (Gen. Stats. 1899, sees. 3575-3598 ; Gen. Stats. 1901, sec. 3683 et seq.), Nebraska (Comp. Stats. 1903, sec. 6476 et seq.), Nevada (Comp. Laws 1900, sees. 324-423), Utah (Rev. Stats. 1898, sec. 1287 et seq. Repealed, but leaving existing districts. See Stats. 1905, c. 108, sec. 71), and Washing- ton (Ballinger's Codes, sees. 4166-4249). See text, sec. 21. APPENDIX B. SYNOPSIS OF STATUTES. (329) APPENDIX B. SYNOPSIS OF STATUTES. The followinj>' synopsis of the statutes of the West- ern States upon waters is intended merely as a guide to the main features thereof, and as an indication of the recent character and extent of legislation. The statutes of the majority of the States are too volumin- ous to be given in detail, and only the most important features are noted. The recent Irrigation Code of Utah is, however, given in full as an example of the new legis- lation. The paragraph "concerning riparian rights" is in- tended to point out provisions similar to those which have intiuenced courts following the Colorado view in rejecting the common law of riparian rights in toto. These clauses sometimes appear also in the irrigation codes of the States where the California doctrine rec- ognizing the common law of riparian rights has hith- erto been in force. It is suggested that perhaps it would be worth while, in these States, to have a clause expressly saving the existing rights of existing riparian proprietors, for the reasons discussed in section 20 of the text. The laws of Wyoming are largely the result of la- bors of Mr. Elwood :Mead, formerly State Engineer of Wvoming, and now Chief of the Irrigation Investiga- (331) 332 APPENDIX B. tion of the United States Department of Agriculture. In Wyoming, Colorado and Nebraska these statutes have been in force for some time. In 1901 an attempt was made to introduce in California, by what was known as the Works bill, an administrative code sim- ilar to the laws of Wyoming, but this failed of passage because of the opposition of irrigators in Southern Cal- ifornia. In 1903, at the direct solicitation of com;- missions appointed by the governors of Oregon and Washington, a draft for a code was prepared by Mr. Morris Bien, the head of the legal department of the United States Reclamation Service. This code was partially adopted in Oregon, but failed entirely of pas- sage in Washington. Nevertheless it was substantially enacted in North Dakota, South Dakota and Okla- homa, in the statutes given below. The draft by Mr. Bien was based upon the codes already existing in Wyoming, Utah and Idaho. The writer understands that while legislation of this kind is favored by all engineers, whether of the De- partment of Agriculture or of the Reclamation Service of the Department of the Interior, yet the Department of Agriculture is most pleased with the part of it look- ing to the encouragement of private enterprises. Not the least interesting feature of the irrigation code legislation is the clause which places a maximum limit upon the quantity which an appropriator may have for irrigation. The effect of this clause upon ex- isting owners is the subject of much discussion. Some believe that anyone who has already appropriated more than the limit allowed for irrigation cannot now be made to take less, claiming the protection of the four- teenth amendment. Others insist that the doctrine of appropriation never gave existing owners the right to waste water, and that the statute merely provides a STATE STATUTES. 333 legislative definition of what constitutes waste. It seems to the writer not impossible that the courts will declare that what constitutes waste is a question of fact depending- upon the evidence in each case, and not a question of law for declaration by the legislature. The Attorney General of Nebraska, however, in 1902, advised the State Engineer that such a limitation is valid, against existing appropriators as well as new ones, relying on the California cases of Barrows v. / Fox, and Natoma etc, Co. v. Hancock, which prohibit waste, as cited in the text. / 334 APPENDIX B. ARIZONA. The law of Arizona is covered by the chapter in Re- vised Statutes of 1901, page 1045, and is declared by the courts to be influenced by the civil law. (Clough V. Wing, 2 Ariz. 371, 17 Pac. 453; Austin v. Chandler (Ariz.), 42 Pac. 483.) The court follows the Colorado system rejecting the common law in toto. Revised Statutes 1901, section Jfl68 (Ciml Code). "The common-law doctrine of riparian water rights shall not obtain or be of any force in this territory." Revised l^tatutcs 1901, section 'fllJf (Ciml Code). "All rivers, creeks, and streams of running water in the territory of Arizona are hereby declared public, and ap- plicable to the purposes of irrigation and mining as here- inafter provided." The system there provided is in many respects pecu- liar to Arizona. STATE STATUTES. 3J5 COLORADO. References are to Mills' Annotated Statutes, volumes 1, 2, 3 (1905 ed.) ; Constitution, article XVI. There is much statutory law upon this subject in Colo- rado, and the courts have frequently declared irrigation to be one of the most urgent mattei's in the State. Declaration of State Ownership. — 'The water of every nat- ural stream not heretofore appropriated, within the State of Colorado, is hereby declared to be the property of the public." (Const., art. XVI, sec. 5.) Concerning Riparian Rights.— Constitution, article 16, section 6, provides that the right to appropriate unap- propriated water shall never be denied. The courts have declared that the rejection of riparian rights is not im- paired by a statute (M. A. S. 2256), which provides that all landowners on the banks of a stream are entitled to the use of the water for irrigation, as that merely con- fers the right to appropriate. ( See Oppenlander v. Left Hand Ditch Co., 18 Colo. 142, 31 Pac. 854; Crippen v. White, 28 Colo. 289, 64 Pac. 184; but see Schwab v. Beam, 86 Fed. 41.) Preferences and Pro-rating.— In case of deficiency of water domestic uses prevail over others, and next, irri- gation. (Const., art. XVI, sec. 6.) The water commis- sioners may pro-rate the water in time of deficiency be- tween all appropriators, by volume or by time of use. (M. A. S. 2259, 2267.) Between consumers from the same ditch, pro-rating is provided for in times of scar- city (in M. A. S. 2267). An appropriation for domes- 336 APPENDIX B. tic use shall not he used for irrigation to any extent whatever (saving cities the right to sprinkle streets). (3 M. A. S., 1905 ed., 2269a.) Administration. — All waters are dedicated to the use of the people of the State, subject to appropriation. ( Const, art. 16, sec. 5. ) The whole S/:ate is divided into five irri- gation dwisions. (3 M. A. S., 1905 ed., 2440 et seq.) The oflflce of superintendent of irrigation is abolished, and five iri'igation division engineers established, one for each division. (Ibid.) The irrigation division engineer has general control over the water commissioners of the districts within his division, and makes rules for carry- ing out the decreed priorities. (Ibid.) Within the irrigation divisions there are water dis- tricts (unincorporated). There are sixty-eight of these, formed according to the location of the water supplies, and they are enumerated in M. A. S. 2310 et seq. There is one water commissioner for each district, whose duties are to carry out the priorities decreed by court ( M. A. S. 2381, 2384) and to keep a general lookout over the district. (See 3 M. A. S., 1903 ed., 2381-2385a.) He may invoke the aid of the sheriff or constable (M. A. S. 2384), and has himself the power of a constable. (M. A. S. 2366.) The State Engineer has general control over all (3 M. A. S., 1905 ed., 2447h), and general supervising con- trol over all waters within the State. ( M. A. S. 2459 ; 3 M. A. S., 1905 ed., 2286a, 2286b.) Determination of Existing Priorities. — The Colorado sys- tem of determining and adjusting rights, which has been copied in some other States, consist exclusively (3 M. A. S. 2339, 1905 ed. ) in a special proceeding before court. The claimant makes an application to the district court STATE STATUTES. 337 or a .ind«]::e thereof, and a notice thereof is published. (M. A. S. 2405 et seq.) Tlie form of hearing? is specially provided for. (M. A. S. 2403.) The judge may order the hearinpf before a referee, in which case the form of hearinpj is likewise specially provided for. (M. A. S. 2409 et seq. ) The decree must be specific. A certificate thereof is given and the holder files the certificate with the water commissioners, who act accordingly, i^l. A. S. 2404.) The certificates must be numbered consecutively (M. A. S. 2408) and be recorded. (M. A. S. 2404.) An ap- peal may be taken to the supreme court. (M. A. S. 2427 et seq.) A list of decre(Hl priorities is kept by the State Engineer and the Irrigation Division Engineer. (3 M. A. S., 1905 ed., 24471.) A similar procedure is provided for appropriations for other uses as well as for irrigation (3 M. A. S., 1905 ed., 2399a et seq.) ; and for changes in the place of diver- sion. (3 M. A. S., 1905 ed., 2273d et seq.) Method of Appropriating.— Within sixty days after be- ginning work tlie appropriator must file two duplicate maps with the State Engineer, in a form satisfactory to him, showing headgates, route, high-water line of reser- voirs, feeders, etc., ditches leading to or from canals, etc., and the lands where built. Attached to the maps must be sirorn statements of location of headgate, dimensions of works, capacity, time of commencement of work, esti- mate of cost. The State Engineer, if he approves, re- turns the duplicate map and statement with a certificate of approval, which claimant records with county clerk and recorder. "I'rovided nothing herein contained shall be construed so as to dispense with the necessity for due diligence in the construction of such projects, or to the injury of those having prior rights to those of the claim- Water Eights— 22 338 APPENDIX B. ants" — or to prevent adjudication of priority as else- where provided. (3 M. A. S., 1905 ed., sees. 2265a- 2265h.) Reservoirs. — Special provisions for reservoirs having a capacity of over seventy-five million cubic feet, etc., are contained in 3 M. A. S., 1905 ed., 2270a et seq. ; 2286d et seq. ; M. A. S. 2270. Measurement of Water. — The State Engineer shall fur- nish a rating table to be used in measuring the water flowing to or from a public stream into which it has been discharged for conveyance. (3 M. A. S., 1905 ed., 2286c.) The unit of measurement in general is, for flowing water, one cubic foot per second; for volume, one cubic foot. (M. A. S. 2467.) STATE STATUTES. 339 IDAHO. References are to Laws of 1903, \)a^e 223, and amend- ments in Laws of 1905; Civil Code, 1901, section 2625 et se(i. ; Code of Civil I*rocedure, 1901, section 3791 et seq. ; Constitution, article XV. Declaration of State Ownership. — There if^ no express dec- laration on this point in the law of 1903 or its amend- ments; but the Civil Code of 1901, section 2625, con- tains tlie followiu*!;: "All waters of the State when flow- ing in their natural channels, includinji- the waters of all natural springs and lakes within the boundaries of the State, are declared to be the pro])erty of tlie State." Concerning Riparian Rights. — "All rights to divert and use the waters of this State for beneficial ])urp()ses shall hereafter be acquii-ed and coulirmed under the provi- sions of this Act." (Stats. 1903, p. 223, sec. 41. See, also. Constitution, art. XV.) The ccmrts follow the Colorado system rejecting riparian rights in toto. (See text.) Administration.— The State of Idaho is, by the statute, divided into three water divisions, numbered 1, 2 and 3 (Stats. 1903, ]). 223, sees. 13-16), with one water commis- sioner for each division ( J hid., sec. 17), to hold office for six years. {/hion the Civil Code of California (Mont. Civ. Code, 1895, sees. 1880-92, amended Stats. 1901, p. 152.) The courts uphold the California system, recogmizing the common law of ri- parian rio^hts. (See text) The Statute of 1905, page 184, chapter 90, provides that the governor is authorized to appoint an Irrigation Code Commission to meet Febniaiw 15, 1906, and pre- pare a revised Irrigation Code adapted to the needs of Montana; and to publish a draft of the same before May 1, 1906. The Statute of 1905, page 80, chapter 44, is an act to authorize appropriations of water by the United States Reclamation Service. 348 APPENDIX B. NEBRASKA. References are to Compiled Statutes (1903) ; and amendments in the Session Laws of 1905. Declaration of State Ownership. — The water of every nat- ural stream not heretofore appropriated is declared the property of the public. (Comp. Stats. 6450.) Concerning Riparian Rights. — Riparian rights are not mentioned but Compiled Statutes, 6451, provides: "The right to divert unappropriated waters of every natural stream for beneficial use shall never be denied." The courts protect riparian rights nevertheless. In the able opinion of Judge Holcomb in the case of Crawford County V. Hathaway (Neb.), 93 N. W. 781, decided by the supreme court of Nebraska, it is said : "The two doc- trines stand side by side. They do not necessarily over- throw each other, but one supplements the other. The riparian owner acquires title to his usufructuary inter- est in the water when he appropriates the land to which it is an incident, and when the right is once vested it can- not be devested except by some established rule of law. The appropriator acquires title by appropriation and ap- plication to some beneficial use and of which he cannot be deprived except in some of the modes prescribed by law. The time when either right accrues must determine the superiority of title as between conflicting claimants." It seems that the legislature of the State of Nebraska had in 1899 abrogated the common-law rule of riparian ownership in water, and substituted therefor the doc- trine of prior appropriation ; but it was held in the case cited that the act could not, and did not, have the effect STATE STATUTES. 349 of abolishing riparian rights which had already accrued, but only of preventing the acquisition of such rights in the future. The court follows the California doctrine enforcing the common law of riparian rights. Preferences and Pro-rating. — In times of deficiency, do- mestic use supplied first; next agricultural uses. (Comp. Stats. G451.) Administration. — Water for the purpose of irrigation is d('( hired "to be a natural want" (Comp. Stats. 6473), and the works therefor are declared works of internal improvement. (Comp. Stats. 6456.) The general control vests in a Board of Irrigation, consisting of the Governor, Attorney General, and Com- missioner of Public Lands. (Comp. Stats. 6412.) They appoint a secretary who shall measure all streams and gather data, etc. (Comp. Stats. 6425.) The State is divided into two water divisions (Comp. Stats. 6409), and the control of each division rests in an under-sec- retary appointed for each by the State board. (Comp. Stats. 6419 et seq.) Within the divisions, the State board may, as necessity arises, create water districts, the control of which rests with an under-assistant for each district. (Comp. Stats. 6441, 6442.) The im- mediate duty of administering the water supply rests with these under-assistants, who may administer prior- ities, shut oft' water, make arrests, etc. (Comp. Stats. 6443.) Owners must maintain headgates and measur- ing devices for this purpose, and if they disobey or ob- struct the officials, are ])unishable criminally. (Comp. Stats. 6443, 6445.) Determination of Existing Priorities. — Priorities existing at the time of the passage of the act are to be determined 350 APPENDIX B. as the Board of Irrigation shall determine. (Comp. Stats. 6424.) Priorities are to be recorded, when deter- mined, in the office of the State board (Comp. Stats. 6427), and a certificate to be issued to appropriators. (Comp. Stats. 6429.) Appeal lies to court. (Comp. Stats. 6430 et seq. ) The rules adopted by the State Board of Irrigation in Nebraska provide that there shall be, on ten days' no- tice, a hearing, presided over by the secretary of the board, to receive testimony. Claimants may appear in person or by attorney, or may file claim affidavits, in which case they need not appear further. The record in the case of each claim consists of the original notice filed with the county clerk, a verified claim affidavit, any ad- ditional testimony offered, points of law, etc., submitted in writing, and the decision of the secretary. A failure to make claim constitutes an abandonment of such claim. Further rules are adopted to cover practice in matters of contest and to cover appeals. Method of Appropriating. — ^Before commencing work, application must be made to the State Board of Irriga- tion on a form furnished by them. This must set forth the source, amount, location of works, time required, time when actual application of the water will be made ("which time shall be limited to that required for the completion of the work when prosecuted with dili- gence" ) , purpose, and if for irrigation, the land to be ir- rigated ; also further details as board may require. If approved ( the application may be amended or cut down by the board, subject to appeal to court) , the application is indorsed approved, the approval recorded and the ap- plication is returned to the applicant, who may then go ahead. (Comp. Stats. 6436.) He must file a map with the board and begin work within six months. (Comp. STATE STATUTES. 351 Stats. 6437, 6470.) A failure of diligence in the work results in forfeiture of the right. (Comp. Stats. 6470.) "When the application has been perfected" the State board issues a certificate which is recorded with the county clerk. (Comp. Stats. 6438.) A similar procedure is provided for making changes later. (Comp. Stats. 6436.) Relation. — Priority dates from the filing of the ap- plication. (Comp. Stats. 6439.) Reservoirs. — Dams over ten feet high require ap- proval of State lx)ard. (Comp. Stats. 6447, 6464.) Measurement of Water.— Xo allotment for irrigation shall exceed one cubic foot per second for each seventy acres. (Comp. Stats. 6428.) One cubic foot per sec- ond is the standard measurement, except where the miner's inch is already in use, and fifty miner's inches are declared equal to one cubic foot per second. ( Comp. Stats. 6440. ) Fees (Payable to State Treasurer in Advance) Statute of 1905, c. 167, p. 652. For filing, etc., applications to ap- propriate, 12.00. For copies of maps, etc., 40c. per hour taken in copying, etc. For recording any other papers, |1.00 for first 100 words; and 15c. for each additional folio. For certified copies of any paper, 15c. per folio for making the copy, and fl.OO for certificate thereto. Crimes.— Wasting artesian well water is subject to a fine. (Comp. Stats. 6407.) Disobeying officials is a misdemeanor. (Comp. Stats. 6407.) Damaging works or stealing water is a crime (Comp. Stats. 6458), and numerous other police regulations. The law of appro- 352 APPENDIX B. priation declared applicable to State lands. (Comp. Stats. 6448.) Irrigation Districts. — Irrigation districts based on Wright Act of California. (Comp. Stats. 6476 et seq.) Irrigation districts based upon the Wright Act of Cali- fornia are provided for in Cobbey's Annotated Nebraska Statutes, section 6825 et seq., amended in Stat- utes of 1905, page 649. The laws of Nebraska con- cerning irrigation districts, based upon the Wright Act of California, were amended in the Laws of Nebraska of 1905, page 648 et seq., chapters 165, 166. Ditches for utilizing waste, seepage, swamp or spring waters governed by the same laws as ditches using waters of natural streams. (Comp. Stats., 6452.) STATE STATUTES. 353 NEVADA. Nevada is reconstructing her laws concerning water in order to advance irrigation. The law of appropria- tion was originally established in Nevada, and the law of riparian rights rejected in toto, bv the decisions of the courts independent of legislation {ante), and this is the basis of Nevada's present laws ; but a thorough sys- tematizing of detail is being provided which is entirely absent in California. Water is scarce — even rare — in Nevada. The lands are susceptible of excellent culture where water can be had, but Nevada is mostly a series of dry, waterless deserts separated by bare mountains. Hitherto the mountain ranges with their great mines have furnished the paramount industry in Nevada, but now the energies of the State are turning to the devel- opment of the Valleys by means of irrigation. Every- thing is being done to aid the National Government in its plans under the act of Congress of June 17, 1902 {ante), and the work of building irrigation systems is proceeding on a large scale. References are to the Compiled Laws of 1900, section 354 et seq. ; Session Laws of 1901 (page 72), 1903 (page 18), 1905 (pages 66, 93, 193, 197). There is nothing in the State constitution. Declaration of State Ownership. — "All natural water- courses and natural lakes and the waters thereof which are not held in private ownership belong to the State, and are subject to regulation and control by the State." (Comp. Laws, 1900, sec. 351.) All waters not held in private ownership are declared (by Stats. 1903, p. 24, Water Eights— 23 354 APPENDIX B. sec. 1) to "belong to the public," and the use thereof is a public use. Concerning Riparian Rights. — The right to waters can arise only by the method prescribed in the statutes, which is the method of appropriation. (Comp. Laws 1900, sec. 359.) Riparian rights are not expressly men- tioned in any of the statutes. The statute of 1903, page 24, section 1, provides "beneficial use shall be the basis, the measure, and the limit of the right," a common phrase in the States rejecting the California doctrine, of which Nevada is one. The court follows the Colorado system rejecting ripar- ian rights in toto. Administration. — There is a State Board of Irrigation, consisting of the Governor, Surveyor General, and Attor- ney General of Nevada. ( Stats. 1901, p. 72. ) This board shall sub-divide the State into water subdivisions, and appoint water commissioners, Avhose duty shall be to ad- minister and apportion the water according to priority (as below determined). The Board of Irrigation shall make such rules and fix such penalties as it shall seem advisable. (Stats. 1903, p. 18; Stats. 1905, p. 66.) The State Engineer is in effect given power of keeping a general lookout over all waters in the State. (Stats. 1903, p. 18, sec. 5.) Any person obstructing the offi- cials in these matters is guilty of a misdemeanor. (Stats. 1903, p. 18, sec. 20. See, also, Comp. Laws 1900, sees. 361-373, possibly repeakxl by Stats. 1903, p. 18.) Determination of Existing Priorities. — Tlie State Engineer shall prepare for each stream in the State of Nevada a STATE STATUTES. 3oo list of existin<; ai)i)i'oi)riations according to priority. For this purpose he shall send blanks to existing claim- ants to be tilled out and sworn to and existing decrees of coui'ts shall be (•(►llected. An examination shall be nuule and record and maps prepared by the iState En- gineer, who shall prepare from these data a list of prior- ities and issue certificates of priority. The list shall be recorded Avith the county recorder. Parties aggrieved may bring an action against the State Engineer in court. From the recorded list the water commissioners shall ad- minister the water. (Stats. 1903, p. 18.) Priority of appropriations hereafter made are determined at the start. {Infra.) Method of Appropriating.— ( Statute of 1905, p. 66. ) Ap- plication must be made to State Engineer, containing details of plan, etc., and any additional facts required by the State Engineer, in a form prescribed by him, and he shall record date of filing with him. In some news- paper, if the application is satisfactory, the State En- gineer publishes a notice of the application "showing by whom made, the quantity of water sought to be ap- l)ropriated; the stream from which the appropriation is to be made and at what point on the stream; the use for which it is to be appropriated, and by what means, which notice shall be published once a week for four weeks,'" ^yithin thirty days after completion of pub- lication written protest may be filed with State En- gineer, who may take such action as he deems proper. If the application is approved by him, he shall return it indorsed to applicant, amended or cut down if neces- sary (subject to suit against him in court within sixty days after the indorsement.) The appropriator must then file a map with the State Engineer. "Upon proof to State Engineer that any application to appropriate 356 APPENDIX B, water has been perfected in accordance with this act, said State Engineer shall issue to the applicant a cer- tificate setting forth the name of the appropriator, date, source, purpose and amount of the appropriation and if for irrigation, a description of the land to be irrigated, which certificate shall within thirty days after its is- suance be recorded in the county in which the point of diversion of the appropriation is, as well as in the county where the water is used, in books especially kept for that purpose, and the fee for such records shall be one dollar, payable by the party in whose favor the certificate is issued." Relation. — The prioriti/ of such appropriation shall date from the filing of the application in the State En- gineer's office. (See Comj). Laws 1900, sees. 425-429, possibly repealed by Stats. 1903, p. 18. ) All appropriations for irrigation are appurtenant to the land irrigated and can be separated therefrom only by becoming appurtenant to other land for irrigation by transfer after approval of the State Engineer and publication of notice, subject to review in the district court. (Stats. 1905, p. 66.) Measurement of Water. — The maximum used to irrigate one acre was fixed at three acre-feet per year in the Stat- utes of 1903, p. IS ; but this was repealed in the Statutes of 1905, p. 66. The standard of measurement is one cubic foot per second. (Comp. Laws 1900, sec. 360.) General provisions similar to California Civil Code, 1410-1422, are contained in Compiled Laws, sections 356-358 and 424. State lands are made subordinate to STATE STATUTES. 357 irrigation plans of the United States. (Stats. 1905, p. 93.) Crimes. — Pollution of streams with substances in- jurious to health of persons, fish, or livestock, made a misdemeanor. (Stats. 1903, p. 214.) Interferinp; with Stat« Engineer is a misdemeanor. (Stats. 1903, p. 18, sec. 20.) Diverting water to waste it is a misdemeanor. (Comp. Laws 1900, sees. 430, 431.) Willfully obstruct- ing flow of stream is a misdemeanor. (Comp. Laws 1900, sees. 432-434.) Throwing sawdust into stream is a misdemeanor even though the stream is not wholly within the State. (Comp. Laws, sees. 4879, 4881, and numerous other police regulations.) Irrigation Di.'^fricffi. — Irrigation districts based on Wright Act of California (ante) exist in Compiled Laws of 1900, sections 374-423. Co-operation with the irrigation plans of the Unit(xl States in general is provided for in Statutes of 1901, page 72, and Statutes of 1903, page 18. (Stats. 1905, pp. 66, 93, 197.) In the proceedings of the Nevada Academy of Sciences, volume 1, No. 1, at a meeting held May 31, 1904, Mr. Albert E. Chandler. State Engineer, gave a discussion of the new statutory system in Nevada. The following extracts may be presented here: "The important provisions of the bill are: " Ist. All natural watercourses and natural lakes, not in private ownership, belong to the public, and are subject to appropriation for beneficial use. "^d. The right to the use of water so appropvi-ited for irriga- tion shall be appurtenant to the land irrigated, and beneficial use shall bo the basis, the measure, and the limit of the right. "3d. The maximum quantity of water which may be used for ir- rigation purposes shall not exceed three acre-feet per year for each acre of land irrigated. "4th. The office of State Engineer is created. "5th. The State Engineer shall co-operate with the Secretary of the Interior in all work of construction, operation, maintenance, and management of irrigation works constructed bv the Secretarv of the 358 APPENDIX B. Interior in and for the benefit of Nevada, and shall in every way facilitate the work of the Secretary of the Interior in carrying out the provisions of the 'Eeclamation Act' in Nevada. "6th, The State Engineer shall prepare for each stream a list of appropriations of water according to priority. ' ' 7th. The State Board of Irrigation shall divide the State of Nevada into water districts, and may appoint water commissioners to divide the water according to the determination of priorities in each district. ' ' ' ' The first step to be taken by the State Engineer in the deter- mination of water rights is a careful survey of the irrigated land. Such a survey will soon be finished of the entire upper Carson Valley in Nevada. The maps show in detail the location of the ditches and the acreage and the kind of crops. The exact position of every five- foot contour has also been determined so that a new system of irri- gating ditches can be easily planned when the government builds the reservoirs on the upper Carson. After the completion of the survey, testimony will be taken to show among other things the amount of land irrigated in each year since irrigation began. This last require- ment caused some criticism at the time the bill was passed. It was contended that the first irrigators have passed away and that it would be very difficult to determine the date of the beginning of irriga- tion on some land. This criticism would seem to be but a strong ar- gument for that particular requirement. The longer such testimony is deferred the more unattainable will it become, so it is well that provision is made for its record even at this late date. So important is this record, that several years ago the owners of ditches on the lower Walker Kiver took the necessary steps to perpetuate testi- mony in regard to their ditches. These men were willing to put them- selves to considerable expense to secure the record. The State now intends to do the work for all and at no cost to the farmer. In tak- ing the testimony, or proof of appropriation as it is called, the State Engineer will personally visit every user of water. His maps and ditcTi measurements will be at the service of the farmer, so that the latter 's inconvenience will be reduced to a minimum. "When sufficient testimony is taken a list of the priorities will be made, and after this list has been prepared a certificate will be issued to each water user, setting forth, among other things, the priority number of appropriation, the amount of water appropriated, the amount of prior appropriations, and the legal subdivisions of land to which the water is to be applied. "After the priority of water rights has been determined for an entire stream^ commissioners will be appointed by the State Board of Irrigation whose duty it will be to divide water among the ap- propriators according to the priority of right and the amount to which each is entitled." STATE STATUTES. 359 Novada ofcupios a unique position in its treatmont of the law of waters. It is now one of the staunchest sup- porters of the Colorado system, rejectinji^ the common law of riparian riij^hts and upholding; the State property view and the law of a])])ropriation as the sole rule ofov- erning- waters. But f, i)a«!,e 270, chapter 102, and page 284, chapter 104. Previous to these stat- utes, tlie laws of New Mexico were, in this connection, contained in tlie Revised Statutes of 1003, chapter XLIV. Declaration of State Ownership. — All waters are declared to belong to the public. (Sec. 1.) Concerning Riparian Rights. — This statute (page 270) contains the usual ju-ovisions that no one shall be de- nied the right to ai)propriate (sec. 1) ; that beneficial use shall be the basis, the measure and the limit of all rights to the use of water (sec. 26) ; that priority gives the better right. ( Sec. 2. ) The courts follow the Colo- rado s\'stem, rejecting the common law of riparian rights in toto. (Cases cited in sec. 19 of text.) Administration. — The office of territorial irrigation en- gineer is created with the usual duties and powers. ( Sec. 11 et se(]. ) The statute divides the territory into six spe- cified water divisions, with one water commissioner for each. (Sec. 23.) A Board of Control is established consisting of the territorial irrigation engineer and the water commissioners. (Sec. 24.) Determination of Existing Priorities. — The determination rests with the Board of Control, subject to review in court. (Sec. 20.) The territorial irrigation engineer makes a survey after due notice, and takes all available testimony. (Sec. 20 et seq.) Provisions are made for contests. (Sec. 33 et s(M|. i Tlic Board of Control is- 362 APPENDIX B. sues a certificate, one copy of which is recorded with the county clerk and the other in the office of the ter- ritorial irrigation engineer. ( Sec. 36. ) Method of Appropriating. — A general method applicable to all pursuits is established ( in chapter 104 of the Laws of 1905). This consists in filing notice in the office of the probate clerk of the county where the stream lies, and resembles more the original method as in force in California than it does the new method under the irriga- tion codes. The work must begin within six months after filing notice and be completed within eighteen months. (Ibid.) Application to the territorial engineer is not required except in cases of dams and dykes (sec. 19 of c. 102) , and not even in those if the cost of the work is to be less than |2,000 (sec. 19), and even where re- quired the territorial engineer has much discretion to waive requirements in favor of projects which he does not consider of great importance. (Sec, 19.) This would seem the only one of the recent statutes which keeps in view those who intend to appropriate water only on a small scale. Measurement of Water. — The second-foot and the acre- foot are the units for time and volume respectively (sec. 3 ) ; and the miner's inch is declared equal to one-fiftieth of the second-foot. (Sec. 3.) The maximum allowed for irrigation shall be one second-foot for seventy acres irrigated. (Sec. 4.) Miscellaneous. — Fees of the territorial engineer are to be fixed b}' the Board of Control. (Sec. 38.) Non-user for four years causes forfeiture of right. ( Sec. 5. ) An unusual provision is that waterworks for private use are exempt from taxation. (Sec. 8.) STATP: statutes. 363 NORTH DAKOTA. The legislation in North Dakota was formerly modeled upon the Civil Code of California (Stats. 1901, p. 268). The courts follow the California doctrine upholding ri- parian rights. In the session of the legislature of 1905, a statute was adopted after discussion in the North Dakota Irriga- ti(m Congress. This statute is Senate bill No. 1, en- titled "North Dakota Irrigation Code." Declaration of State Ownership. — All waters from all sources belong to the public (sec. 1). Concerning Riparian Rights. — All waters except navi- gable streams are sul)ject to appropriation (sec. 1). Beneficial use shall be the basis, the measure and the limit of right; priority gives the better right (sec. 2). Administration. — The use of water is a public use (sec. 3 ) . The oftice of State Engineer is created with pQwers of general sujK'rvision over the State (sec. 5). He shall keep records (sec. 11), and nmke rules subject to modi- fication by vote of. the board of water commissioners (sec. 12). He shall make surA-eys of streams (sec. 14), and co-operate with the United States Reclanmtion Ser- vice (sec. 14) ; and may inspect the works of appro- priators at any time (sec. 27). The whole State is divided into four water divisions (sec. 37); with one commissioner for each division (sec. 38) ; commissioner having general control over the waters within his division (sec. 39) ; the divisions may be siib-divi(h'(l by the State Engineer into water dis- tricts (sec. 42), with one water master for each district, 364 APPENDIX B. and he shall have immediate charge of the waters (sec. 43). A board of water commissioners is established^ consisting of the water commissioners and the State En- gineer, and this board has general supervision over the whole State (sec. 40). Police regulations consist in such provisions as that use of unsafe works is a misdemeanor (sec. 28) ; the failure to maintain a measuring device, likewise (sec. 52); interference with oiflcials (sec. 53); or any acts in general which contravene the statute (sec. 54). These are all misdemeanors and the penalty therefor is provided in section 57. Determination of Existing Priorities. — On completion of the survey of any stream system the State Engineer delivers the data to the Attorney General. Suit is brought by the Attorney General within sixty days, un- less already begun by private parties, in which case the Attorney General may inten-ene on behalf of the State (sec. 13). All claimants are made parties and bear the cost between them (sec. 16). A referee may be ap- pointed to take the evidence (sec. 33). A decree is rendered, and two certified copies thereof are given to the appropriator, who files one with the State Engineer and the other in the office of the water commissiouer of the division in Avhich the stream lies (sec. 19). Method of Appropriating. — Before commencing work, application must be made to the State Engineer on a form prescribed by him, with any maps he may demand. Additional information may be r(H|uir(Ml by him con- cerning works that are to exceed five hundred cubic feet per second, or concerning dams over thirty feet in height (sec. 19). An examinati(m of the application, corrections thereof and refiling, follow (sec. 20). No- tice is then published once a week for four Aveeks and STATE STATUTES. 365 proof of publication made (sec. 22). If approved, the approval is indorsed upon the application, which con- stitutes a permit (sec. 22). From the refusal of the State Eufiinocr to api)rove the application, appeal lies to court if iMkcn within sixty days (sec. 23). Prosecution of the work must continue with diligence (sees. 2 and 24). One-fifth of the work must be com- pleted in one-half the time allowed (sec. 24) ; and the completion must be within five years (sees. 20, 22), unless the time is extended (not over three years) by the State Engineer (sees. 24, 30). A notice of com- pletion is filed with the State Engineer, who makes an inspection (sec. 25), and issues a certificate of com- pletion (sec. 26). Actual application of the water to beneficial use must follow within four years (sec. 22), unless the time is extended by the State Engineer for a time not over two years (sec. 30). Notice is given to the State Engineer of the actual application, and he makes an inspection and issues the final certificate, which is called a license (sec. 29). A change in the point of diversion may be made only with the approval of the State Engineer (sec. 23). Relation. — The right relates back to date of filing ap- plication in the oflice of the State Engineer (sec. 2). Measurement of Water. — The second- foot and the acre- foot are the standards of measurement for time and vohiiiie respectively (sec. 47). The miner's inch is de- clared ecpuil to one-fiftieth of a second-foot (sec. 47). The maximum allowed for irrigation shall not exceed one second-foot for each eighty acres irrigated (sec. 49.) Fees of State Engineer arc ])rovided for in section 10. Miscellaneous. — Canal companies are trustees for con- sumers ( sec. 19 ) . Non-user for three yeare causes loss 366 APPENDIX B. of right (sec. 48). Provisions concerning change of purposes of use are provided for in section 51. Con- cerning seepage water, section 49; concerning State lands, section 60. A transfer of the water right for use on different lands may be made only on application to the State Engineer and publication of notice (sec. 50). The assignments of water rights or of permits must be recorded in the office of the State Engineer (sec. 31). STATE STATUTES. 367 OKLAHOMA. References are to the Laws of 1905, page 274, chapter 21. The law previous to the passage of this act is con- tained in Revised Statutes of 1903, chapter 44. Concerning Riparian Rights. — The act contains, in sec- tion 1, provisions similar to those of South Dakota, given at page 373, below. Administration. — Use of water is declared a public use. (Sec. 2.) The office of the teiTitorial engineer is men- tioned throughout the act ; but no such office was created, and the duties of the territorial engineer are to be per- formed by the secretary of the Board of Agriculture for the present. (Sec. 54.) The powers and duties of the territorial engineer are similar to those contained in the South Dakota act of this same year, outlined on page 373, below. The ter- ritorial engineer has the power to sub-divide the terri- tory into water districts, appointing a Avater master for each district. (Sec. 32 et seq. ) For obstructing the officials or failure to maintain the proper devices the usual punishments are specified (in sec. 43). Adjustment of Existing Priorities. — The territorial en- gineer, having made a complete survey of a stream (sees. 4, 6), furnishes the results to the attorney general, who, within sixty days, brings suit, unless suit is already brought by private parties. (Sec. 5.) A referee may be appointed by the court. (Sec. 23.) A decree stat- ing specified details is tiled with the territorial engineer and also recorded in tlie county where the stream lies. (See. 8.) 368 APPENDIX B. Method of Appropriating. — Before commencing work, an application for a permit must be made to the territorial engineer in the usual way. ( Sec. 10. ) Notice thereof is published (sec. 11) ; and the approval indorsed thereon. (Sec. 12.) Beginning work without permit from the territorial engineer is a misdemeanor. (Sec. 40.) The work must be prosecuted with diligence (sec. 14), and one-fifth thereof must be completed in one-half the time specified for the completion thereof, which is five years (sec. 10), unless the territorial engineer specifies a shorter time (sec. 12), or a longer time, not exceeding three years additional. ( Sec. 20. ) Notice of completion being filed with the territorial engineer, he makes an in- spection (sees. 15 and 17), and issues a certificate of completion. ( Sec. 16. ) Actual application and use of the water must be made within four years after comple- tion, unless the territorial engineer specifies a shorter time, or a longer time not exceeding two years addi- tional. ( Sec. 20. ) On or before the date set for actual application of the water to beneficial use, the territorial engineer makes an inspection, and if satisfactory, issues a license (sec. 19), which is the final certificate issued. Relation. — The doctrine of relation is preserved (in sections 1 and 10), the priority of right relating back to the original application for permit. Measurement of Water. — The second-foot and the acre- foot are the units of time and flow respectively. (Sec. 27. ) One second- foot for seventy acres is the maximum allowed for irrigation. (Sec. 29.) Miscellaneous. — Fees of the territorial engineer are pro- vided for in section 53. All liens provided for in this act shall be superior in right to all mortgages or other en- cumbrances hereafter. (Sec. 44.) The water right is STATE STATUTES. 369 appurtenant to the land (sees. 1, 21), and transfer thereof is restricted and can be made only upon application to the state engineer and publication of notice. (Sees. 21, 30.) Provisions concerning water or canal companies are con- tained in sections 9, 25. Non-user for two years causes forfeiture. (Sec. 28.) Water Eights— 24 370 APPENDIX B. OREGON. Originally the Statutes of Oregon (Hill's Annotated Laws 1892, page 1930, sections 1-9) had been modeled upon the Civil Code of California. In the Laws of 1899, page 172, a more enlarged treatment was given the sub- ject, but still resembling the California code (Amended Statutes of 1901, pag'e 136; 1903 (special session), page 25.) But in 1905, page 101, a new statute was passed modeled rather upon the recent statutes of the arid States. The courts of Oregon uphold the California system, recognizing the common law of riparian rights. (See text.) The Oregon Statute of 1905 is in part as follows: "Section 1. ApproprUiiUm of ^yafe^. Any person, association, or corporation hereafter intending to ac- quire the right to the beneficial use of any waters for the reclamation of arid lands, shall post in a conspicu- ous place at the proposed point of diversion a written or printed notice containing the name of such applicant and the stream or other source of supply of such water, a brief description of the point of diversion and the na- ture of the beneficial use to which such waters are to be applied, and the exact date of posting, and shall within fifteen days thereafter file in the office of the clerk of the county in which such notice is posted, a du- plicate thereof so attested, and shall within thirty days thereafter file in the oftice of the State Engineer a cer- tified copy of such duplicate as filed in the office of the county clerk, which shall be accomi^anied by such in- formation, mai)s, field-notes, plans and specifications as may be necessary to show the method of construction. STATE STATUTES. 371 All siicli maps, field-notes, plans, and specifications shall be made from actual surveys and measurements, and shall be retained in the office of the State Enuineer; provided, that appropriation of water by the United States shall be made as provided in section 2." "Section 5. Decrees Adjudicatinf/ Water Riffhts. Upon the adjudication of the riojhts to the use of the Avater of a stream system, a certified copy of the decree shall Ix' prepannl by the clerk of the court, without charge, and filed in the office of the State Engineer. Such decree shall in every case declare, as to the water right adjudged to each party, whether riparian or by appropriation, the extent, the priority, amount, purpose, place of use, and, as to water used for irrigation, the specific tracts of land to which it shall be appurteuant, together with such other conditions as may be neces- sary to define the right and its priority. "Section (i. State I'in/iiicci-. Appoint inciil , J/ulirs, Qiia1ificatio7iSj and Salary. A State Engineer, techni- cally «iualified and experienced ais an hydraulic en- gineer, shall be ap])()inted by the (loveruor upon the recommendation of the director of the United States geological survey and confirmed by the Senate. He shall hold oftice for the tenu of four years from and after his ai)i)ointnieut, unless sooner removed by the Governor for cause, and until bis successor shall have been elected and shall have qualified. He shall luiv(^ g(Mu^ral su]iervision of all the measurements and records of appropriation of watei-s of the State, and of all sur- veys and engineering work in which the State ma\ be interested, and for which funds are provided, and shall perform all work in connection therewith." "Section 9. Fees of State Enf/ineer. The State Engi- neer shall receive the following fees, to be collected in advance, and to be paid by him into the general fund of 372 APPENDIX B. the State Treasury on the last day of March, June, Sep- tember and December of each year: " (a) For filing and recording notice of an appropria- tion of water, map and field-notes of the same, $5.00. "(b) For blue print copy of any map, drawing, ten cents per square foot or fraction thereof. For other copies of drawings or any data furnished upon applica- tion, actual cost of work. '"(c) For certifying to such copies, $1.00 for each certificate. "(d) For such work as may be required of his office, the fees provided by law." STATE STATUTES. 373 SOUTH DAKOTA. References are to the Statute of 1905, page 201, chap- ter 132. Previous to this statute, there had been little legislation upon the subject in South Dakota. The of- fice of State Engineer existed. (Annotated Codes 1899, sec. 2802 et seq.) And there had been considerable leg- islation concerning waters obtained from artesian wells. {Ibid., sees. 27, 51 et seq.) Previous to the Statute of 1905, the law of South Dakota in this connection was contained in Grantham's Annotated Statutes of 1899, section 2687 et seq. Declaration of State Ownership. — All waters within the State are declared in section 1 to belong to the public. Concerning Riparian Rights. — This South Dakota statute contains the usual provisions to the effect that all waters within the State are subject to appropriation (sec. 1), and that beneficial use shall be the basis, the measure and the limit of all rights to the use of water (sec. 2), and that approi)riation gives the better right. ( Sec. 2. )' The courts have in the past upheld the common law of riparian rights, following the California system. (See sees. 18 and 20, of text, ante.) Administration. — The State Engineer is appointed (sec. 5) with general duties and powers of supervision over the waters of the State, and to make surveys and collect all data available (sees. 5, 12, and 32). He may examine all works. (Sec. 27.) The oflice of assistant state en- gineer is likewise created. (Sec. 6.) Three water di- visions are created by this statute (sec. 37), with one 374 APPENDIX B. water commissioner for eacli appointed hx tlie goTer- nor. (Sec. 38.) The State Engineer and the water commissioners shall together form the Board of Water Commissioners and have general supervision and con- trol over waters of the State, adopting rules and regu- lations, etc. (Sec. 40). The water divisions may be sub-divided into water districts by the State Engineer, as it becomes advisable. (Sec. 42.) Police regulations exist in the usual way. Disobeying the orders of the State Engineer ( sec. 28 ) , or failure to maintain headgates and other devices (sec. 49), and sim- ilar matters, are made misdemeanors ; and the penalties therefor are specified in section 54. Determination of Existing Priorities. — The State Engineer is required to make a complete survey of the waters of the State (sec. 14), and to furnish the data collected to the attorney general, whose duty it then is to bring suit in the name of the State to determine the rights upon the stream, unless suit has already been begun by private parties. (Sec. 15.) The usual provisions for the con- duct of the suit are provided, and the court may appoint a referee. (Sec. 33.) The decree must state certain si>ecifled details concerning the rights of all users of water on the stream, and one copy thereof must be filed in the oflflce of the State Engineer, and the other copy with the water commissioner of the water division in which the stream lies. (Sec. 18.) Method of Appropriating. — Before beginning work, ap- plication must be made to the State Engineer for a per- mit. (Sec. 19.) Beginning work without making such api)li(ation is a misdcMiieanor. (Sec. 51.) The State En- gineer Avill furnish bhiuks on which applications are to be made, and may require such general information as he STATE STATUTES. 375 (l(*«Mns iH'ccssnry. (So(;, 19.) Notice of application is piihlislicd in a newspaper (see. 21), and an examination is made by tlie State Engineer ; if he approves he indorses his approval npon the application, which constitutes a ])ermit to pritcccd. (Sec. 22.) If he rejects the applica- tion, an appeal lies therefrom, (Sec. 23.) The work must be prosecnte- application to appropriate, |2.50. On proof of appropriation, .fS.OO. Kecording- completed applications, $2,50. Cei-tificates of appropriation, fl.OO. Filin<>' notices of protest, |2.50. I'Mlinj!; any other paper, .|1.00. Certitied copy of any paper, per folio, 20c. Blue-print of any map, etc., 10c. per square, foot. Certiticate to copy of paper or map, etc., 50c. frr'u/dfion District.^. — Concerning- irrigation districts based on the Wriiiht Act of California, see Kevised Stat- utes of 1808, section 1287 et seq. (since repealed), and Statute of 1005, c. 108, sec. 71. Utah Irrigation Code. The rtah Irrigation Code is here iiiveu in full as an instance of the recent type of legislation, of which it is a good ('xanii)le. 384 APPENDIX B. (1905 Laws of Utah, c. 108, p. 145.) WATER RIGHTS AND IRRIGATION. An Act codifying and revising certain laws providing for determining and recording water rights ; regulating the diversion, use and ap- portionment of water; prescribing the manner in which Avater may be appropriated ; providing for the appointment of a State Engineer and prescribing his qualifications, powers, duties and compensation; requiring claimants to the use of water to file statement of their claims, and declaring the forfeiture of rights for failure to file such statements; providing for the taking of testimony and the enter- ing of decrees determining rights to the use of water and per- mitting appeals ; requiring certificates of water rights to be issued, filed and recorded; directing that the State shall be divided into water divisions and districts, and that superintendents and super- visors shall be appointed to apportion the water; requiring the ap- plications for the apportionment of water to be filed, and permitting the construction of diverting works ; providing for the issuance and recording of certificates of appropriation ; declaring water to be pub- lic property, subject to existing rights ; fixing units of measurement of water; establishing basis, measure and limit of right; providing for the abandonment of use, change in manner or place of use, and commingling and recovery of water; defining rights of appropria- tors, permitting irrigation companies to take stock in similar com- panies; providing for the acquisition of rights of way, and the use and enlargement of existing canals; directing that canals, bridges and crossings be kept in repair; declaring when water rights are appurtenant to land, and how transfers are to be made and re- corded; fixing penalties for violations of this act; providing legal advisers for State Engineer; establishing fees and prescribing how they shall be collected and paid to the State; providing for the pay- ment of fees, costs and expenses under this act; prescribing who may be parties in actions concerning water, preserving the existence and providing for the dissolution of irrigation districts; repealing chapter 100, laws of Utah 1903, and all other laws, and parts of laws in conflict with the provisions of this act; but preserving vested rights to the use of water, and providing that any right in- itiated under the laws repealed by this act or by said chapter 100, may be completed and perfected; providing that water commission- ers heretofore appointed shall continue to perform their duties until superseded by division superintendents and district supervisors, and that similar water commissioners may be appointed if necessary. Be it enacted by the Legislature of the State of Utah : Section 1. Office of State Engineer created. Powers and duties of. There shall be a State Engineer, who shall be appointed by the Gover- nor of the State and be confirmed by the Senate. He shall hold his office STATE STATUTES, 385 for tho term of four years and until his successor shall have l>een ap- pointed and qualified. He shall have goneral supervision of the waters of the State and of their measurement, apportionment and appropria- tion, and of all division superintendents and district supervisors. He shall have power to make and publish such rules and regulations as he may deem necessary from time to time, to fully carry out the provisions of this act and secure the equitable and fair apportionment of the water according to the respective rights of appropriators. No person shall be appointed to the ofiice of State Engineer who has not such theoreti- cal knowledge and practical experience and skill as shall fit him for the position. Sec. 2. Salaiy and allowances. The State Engineer shall receive a salary of three thousand dollars per annum, payable in quarterly in- stallments by the State Treasurer upon warrants drawn by the State Auditor. When the State Engineer is called away from his office on official business, he shall be entitled to his actual traveling expenses, which shall be paid out of any money apprppriated for that purpo.se, on the certificate of said State Engineer, approved by the State Board of Examiners. Sec. 3. Office at capital. The State Engineer shall keep his office at the State capital. Sec. 4. Oath and bond. Before entering upon the duties of his office, the State Engineer shall take and subscribe an oath before some officer authorized by the laws of the State to administer oaths, to faith- fully perform the duties of his office. He shall file with the Secretary of State said oath and his official bond in the penal sum of five thousand dollars, with not less than two sureties, to be approved by the State Board of Examiners, and conditioned for the faithful discharge of the duties of his office, and for the delivery to his successor or other officer appointed by the Governor to receive the same, all moneys, books and other property belonging to the State then in his hands or under his control, or with which he may be legally chargeable as such officer. Sec. ;"). Report to Governor. The State Engineer shall prepare and render to the Governor biennially, and oftener if required, full and true reports of his work relating to the matters and duties devolving upon him by virtue of his office, which biennial report shall be delivered to the Governor on or before the 31st day of December of the year pre- ceding the regular session of the Legislature. He shall become con- versant with the water ways of the State, and its needs as to irrigation matters, and in his reports to the Governor he shall make such sugges- tions as to the amendment of existing laws or the enactment of new laws as his information and experience shall suggest. He shall keep on file in his office full and projxM- records of his work, inchnlinu all field notes, computations and facts made or collected by him, all of which shall be duly certified by him, and be part of the records of his office Water Eights— 25 386 APPENDIX B. and the property of the State. All records, maps and other papers re- corded and filed in the office of the State Engineer shall be open to the public during business hours, and copies thereof, certified by said en- gineer, shall be furnished on payment of the fees provided for by this act. Sec. 6. Duties of Engineer. May be co-operate with National Gov- ernment. Tlie State Engineer shall make a complete hydrographic sur- vey of each river system and water source of the State, beginning such ■work upon those streams and sources which are most used for irriga- tion, and, from the data so obtained the State Engineer shall con- struct maps, which shall exhibit the essential facts relating to the sup- ply, diversion and use of the water of each of such river system or water sources. He shall also collect such other facts as will, in his judgment, aid in ascertaining the existing rights to the use of the water and in de- termining the volume of the surplus or unappropriated water, if any, of each of such streams or sources. He shall have general supervision of the appropriation of all surplus or unappropriated water in the manner provided by law. Said surveys and collections of facts shall in- clude the location of all suitable sites for dams and reservoirs, and a determination of the approximate capacity and cost of each. In doing such work, the State Engineer may co-operate with the agencies of the National Government, engaged in similar work within the State, for the purpose of interchanging information and avoiding the unnecessary duplication of work. Tlie State Engineer shall have a seal which he shall affix to all certificates issued from his office. Sec. 7. Notice to be given. Before commencing the hydrographic survey of any river system or water source, the State Engineer shall cause notice to be published in some newspaper having general circula- tion on said river system or water source, stating the time and place of beginning said survey, and said notice shall be published continu- ously in said newspaper for a period of not less than fifteen days im- mediately prior to the commencement of said work. Sec. 8. Must examine plans of dams exceeding five feet in height, and inspect dams. Duplicate plans, drawings and specifications for any dam above five feet in height, across the natural channel of a running stream, or of any other dam intended to retain water above ten feet in height, shall be submitted to the State Engineer for his approval, who shall examine such plans, drawings and specifications, and, if he ap- proves the same, he shall return one copy of each such plans, drawings and specifications, with his approval, to the party or parties submitting the same and file the other in his office. If the State Engineer disap- proves any of such plans, drawings or specifications, he shall return the sam*, with his reasons for sucli disapproval, llie State Engineer shall have authority to keep an inspector on any such dam during the construction thereof, and to see that the work is done in accordance STATE STATUTES. 387 with the plans, drawings and specifications, and the State Engineer may require the parties constructing the same to make any additions or alterations during the construction which he considers necessary for the security of the work, the safety of persons or the protection of property. Any person, corporation or association beginning the construction of any such dam before the plans, drawings and specifications shall have been submitted to and approved by the State Engineer, or proceeding with such work in the absence of an inspector appointed by said en- gineer, or who shall fail to comply with any of the requirements made by him in pursuance of this section, shall be guilty of a misdemeanor. Sec. 9. Dam or works examined, when. Should any person, corpora- tion or association residing on or owning land in the neighborhood of any completed dam or diverting works, apply to the State Engineer in writing, requesting an examination of such dam or works, the State Engineer may order an examination thereof. Before doing so, he may require the applicant for such examination to deposit a sum of money sufficient to pay the expenses of the examination, and in case the appli- cation appears to him not to have been justified, he may cause the whole or part of such expense to be paid out of such deposit. In case the re- quest appears to the State Engineer to have been justified, he may re- quire the owner of the works to pay the whole or any part of the ex- penses of such examination. Sec. 10. May inspect dams and require alteration. The State En- gineer shall have authority to examine and inspect, during construc- tion, any ditch or other diverting works, and, at the time of such in- spection, he may order the parties constructing the same to make any addition or alteration which he considers necessary for the security of such works, the safety of persons or the protection of property. Any person refusing or neglecting to comply with such requirements of the State Engineer shall be guilty of a misdemeanor. But the provisions of sections 8, 9 and 10 shall not apply to works constructed by the National Government. Sec. 11. On completion of survey, statement to be filed. When the State Engineer has completed the hydrographic survey of any river system or water source, he shall file a written statement with the clerk of the district court of the county in which the same is situated, or if the system or source extends into more than one county, the statement shall be filed in any county which embraces any part of such river sys- tem or water source that the State Engineer shall select as most con- venient for the water users of the system or source. Said statement shall set forth the fact of the completion of such survey, the names and postoffice addresses of all persons, corporations and associations using water of said river system or water source, so far as the same are known to the State Engineer, and shall contain such other facts and in- formation as he may deem necessary. On the filing of such statement, 388 APPENDIX B. the district court in the county where the same is filed shall have exclu- sive jurisdiction to determine all water rights on said river system or water source, in accordance with the provisions of this act. Sec. 12. Notice to be given. Claimants to file statements. Within thirty days after the filing of the statement mentioned in the last pre- ceding section, the clerk of the court in which the same shall be filed must give public notice that all persons claiming the right to the use of any water of said river system or water source must file a written state- ment with the clerk of said court, within six months after the first pub- lication of said notice, setting forth their respective claims to the use of such water, which notice shall be published at least once a week for three successive months in some newspaper printed and published within the boundaries of said river system or water source and having a general circulation therein; or, if there be no such newspaper, then it shall be published in some newspaper printed and published in this State and having a general circulation on said river system or water source. The clerk of said court shall also mail, by registered letter, to each of the persons, corporations or associations whose names and addresses are given in such statement filed by the State Engineer, a copy of said no- tice, and a blank form on which said claimant shall present, in writing, as provided in the next succeeding section, all the particulars relating to the appropriation of the water of said river system or water source to which he lays claim. Sec. 13. Application for water, how made. Each person, corpora- tion or association claiming the right to use any water of said river system or water source, shall, within six months after the first publica- tion of the notice provided for in the last preceding section, file in the office of the clerk of the court giving said notice, a statement in writ- ing, which shall be signed and verified by the oath of the claimant, and shall include as near as may be the following: The name and post- office address of the person, corporation or association making the claim; the nature of the use on which the claim of appropriation isl based; the flow per second of water used and the time during which it has been used each year; the name of the stream or other source from which the water is diverted; the place on such stream or source where i;he water is diverted, and the nature of the diverting works; the date •when the first work for diverting the water was begun, and the nature of such work ; the dimensions, grade, shape and nature of the diverting channel, as originally constructed; the date when the original divert- ing channel was completed ; the date when the water was first used, the flow per second, and the time during which the water was used the first year; the date and nature of each subsequent change made in the orig- inal diverting channel ; the flow per second of the water used and the time it was used each year between each of the changes so made, and the dimensions, grade, sliape and nature of the present diverting chan- STATE STATUTES. 389 nel; the place where and the manner in which the water was first used; the nature of each subsequent change in the place or manner of use, and the place and manner of present use; and such other facts as will clearly define the extent and nature of the appropriation claimed. If the water claimed to have been appropriated is used for irrigation, the statement shall show, in addition to the above required facts, the area of land irrigated the first year and each subsequent year; the total area at present irrigated, and its location in the section, township and range wherein it is situated; the character of the soil and the kind of crops raised during the first year of use and the first year after each subse- quent change of channel, and during the last year in which the water was applied. If the water claimed to have been appropriated is iised for develop- ing power, the statement shall show, in addition to the above required facts, the number, size and kind of water wheels employed; the head un- der which each wheel is operated ; the extent of the power produced, and the purposes for which and the places where it is used, and the point where the water is returned to the natural stream. If the water claimed to have been appropriated is used for mining, the statement shall show, in addition to the above required facts, the name of the mine and tlie mining district in which it is situated ; the na- ture of the material mined, and the place where the water is returned to the natural channel of the stream. Within sixty days after the ex- piration of the six months allowed for filing statements of claims, the State Engineer shall tabulate the facts contained in the different state- ments filed; a copy of said tabulation shall be immediately filed in the office of the clerk of said court, and a copy in the office of the county re- corder of each county which embraces any part of said river systt'm or water source. Sec. 14. Statements to be filed. Failure to make statement a bar. The clerk of said court shall enter the statement in a book to be kept for that purpose and shall file and preserve the same in his office, noting the date of filing. The filing of each statement shall be considered notice to all persons of the claim of the party making the same, and any person failing to nuike and deliver such statement of claim to the clerk of the court within six months after the first publication of the notice provided for in the last preceding section, shall be forever barred and estopped from subsequently asserting any rights theretofore ac- quired to the use of water of said river system or water source, and shall be held to have forfeited all rights to the use of said water thereto- fore claimeil by him; provided, that any claimant upon whom no other service of said notice shall be made than by publication in the news- paper, may apply to the court for permission to file a statement of claim after the time therefor has expired, and the court or judge thereof may extend tlie time for filing said statement^ not exceeding one year from 390 APPENDIX B. the first publication of said notice, but, before said time is extended, the applicant shall give notice by publication in some newspaper having general circulation on said river system, to all other persons interested in the water of that river system or water source, and shall make it ap- pear to the satisfaction of the court that, during the pendency of the proceedings, he had no actual notice thereof in time to appear and file a statement and make proof of his claim ; and all parties interested may present affidavits as to the matter of actual notice of application. Sec. 15. Referee to be appointed. At the expiration of six months after the first publication of the aforesaid notice, the district court of the county in which said statements of claim have been filed may ap- point a referee or referees, not exceeding three, to take testimony and determine the rights of said claimants to the use of the water of said river system or water source, as in other equity cases. Any claimant may object to the appointment of any person as referee for the same cause for which challenges for cause may be taken to a petit juror in the trial of a civil action. Such objection must be heard and disposed of by the court, or a judge thereof, and affidavits may be read and wit- nesses examined concerning the same. Sec. 16. Oath. Power of referee. The referee, or referees, be- fore proceeding to hear any testimony, must be sworn well and truly to hear and determine the facts and issues referred to them, and true find- ings render according to the evidence, and he or they shall have power to administer oaths to all witnesses produced before him or them. Sec. 17. Statements in place of pleadings. Maps and records of en- gineer's office evidence. The statements filed by the claimants shall stand in the place of pleadings, and issue may be made thereon. They shall unless the court determines the matter itself AAithout a reference be referred and delivered to the referee or referees, with all other files and papers relating to water claims of said river system or water soTirce, including the statement and map filed by the State Engineer, who shall, before the expiration of the six months allowed for filing statements of claim, as aforesaid, file with the clerk of said court, and with the county recorder of each county which embraces any part of said river system or water source, a copy of the map of said river system or water source, made in pursuance of his survey thereof; and whenever requested so to do, the State Engineer shall furnish the court or referee or referees with any information which he may possess, or copies of any of the records of his office which relate to the water of said river system or •water source, and in all proceedings for the determination of the rights of claimants to the water of said river system or water source the said maps and records, or certified copies thereof, shall be competent and prima facie evidence of the facts stated therein or delineated thereon. Sec. 18. Amendments permitted. Powers of referee. Tlio referee or referees shall have power to allow amendments to any statement or STATE STATUTES. 391 pleading, as the court might do, and upon the same terms and with like effect. He or they shall have power, and it shall he the duty of the court or referee or referees to take testimony at such times and places within the boundaries of the river system or water source as may be con- venient to the respective claimants interested, and the court or referee or referees shall determine the rights of all said claimants as herein- after provided. The court, referee or referees sliall give not less than fifteen days notice to the claimants, stating when and where he or they will begin to take testimony; said notice shall be published in some newspaper having general circulation on said river system or water source, and upon the date named in the notice, the court, referee or referees shall begin to take the said testimony, and shall continue the same until all the testimony relating to claims to water of said river system or water source is completed; provided, that a notice shall be served upon each claimant at least fifteen days before the testimony is taken upon his or its claim, stating the time and place, when and where such testimony will be taken, and said notice shall Iw served in the same manner as a summons issued out of the district court. But he or they may grant adjournments from time to time as occasion may require, and during all of said time the map or maps and other records fur- nished by the State Engineer, as hereinbefore provided, shall be open to the inspection of all parties interested. Sec. 19. Any interested party may contest. Any person, corpora- tion or association owning any irrigation works, or claiming any inter- est in the water of said river system or water source, may contest the rights of any person, corporation or association who have filed state- ments of claim for any water of said river system or water source, by filing a written statement of the grounds of their contest with the clerk of said court, within thirty days after the filing of the tabulation of facts provided for in section 13; which statement of contest shall be verified by the oath of the contestant. Upon the filing of said contest, the referee or referees shall fix the time for hearing the same, which date shall be not less than thirty days nor more than sixty days from the time when the notice is served on the party, which notice and the re- turn thereof shall be made in the same manner as summons is served in civil actions in the district courts of this State. Sec. 20. Subpoenas for witnesses. Tlie referee, or referees shall have power to issue subpoenas to witnesses which shall be served in the same manner as subpoenas issued out of the district court, and all wit- nesses so subpoenaed shall attend and testify and produce books and papers and documents, as required, before such referee or referees, and said witnesses shall receive the same fees as in civil cases in the district court, to be paid by the parly or parties against whom the contest shall be finally determined. Sec. 21. Referees' findings. On the completion of the evidence, the 392 APPENDIX B. referee or referees shall state, in writing, the facts found by him or them, as to each claim sxibmitted, and the conclusions of law in relation thereto, separately, and shall report the same, with a form of decree, to the district court; and said court may review said report and enter de- cree thereon, or set aside, alter or modify the same and enter decree thereon so altered or modified, and, when necessary, may require the i^feree or referees to amend his or their reports. All the testimony taken by any referee or referees shall be stenographically reported, and the same, together with all other evidence in the matter, shall be trans- mitted to, preserved and filed in the office of the clerk of said district court, with the report of such referee or referees. Notice of the filing of the report of the referee or referees shall be given by the clerk, as the court may direct, and exceptions to the findings and report of the referee may be taken by the parties, as the court shall prescribe by rule. Sec. 22. Effect of decree. The decree shall determine and estab- lish the rights of the several claimants to the use of the water of said river system or water source, and among other things shall set forth the name and postoffiee address of the person, corporation or association entitled to the use of the water ; the quantity of water in acre-feet or the flow of water in second feet to be used; the purpose for which the water is to be used; the time during which the water is to be used each year; the name of the stream or other source from which the water is diverted; the place on the stream or other source where the water is diverted; the priority number of the right; the date of the right, and such other matter as will fully and completely define the right of said person, corporation or association to the use of the water. Sec. 23. Decree may be appealed from. The decree so entered by the district court may be appealed from to the supreme court, in like man- ner as from decrees and judgments in other cases ; provided, that such appeal shall be taken within six months after the entry of said decree, and all proceedings on appeal sliall be conducteersons are required, by bridge or otherwise, to keep such ditch, canal, flume or other water course in good repair where the same crosses any public road or highway, so as to prevent obstruction to travel, or damage or overflow to such public road or highway. Sec. 59. Each person or corporation liable for proportionate expense. When two or more persons, companies or corporations are associated by agreement or otherwise, in the use of any dam, canal, reservoir, ditch, flume or other means of conserving or conveying water for the irrigation of land, or for other purposes, each of them shall be liable to the other for the reasonable e.vpense of maintaining, operating and con- trolling the same, in proportion to the share of the use or ownership of the water to which he is entitled. If any person, company or corpora- tion refuse or neglect to pay his proportion of such expense, after five days notice in writing demanding such payment, he shall be liable therefor in an action for contribution ; provided, that in any company or corporation owning or controlling more than one canal or ditch, for the purpose of improving or keeping the same in repair, the users of water shall not be required to pay any expenses or assessments in any canal or ditch, other than the one in which they are directly interested. Sec. 60. Water rights appurtenant to land under government works. That all water hereafter appropriated for irrigation purposes from works constructed or controlled by the United States shall be appurte- nant to specified lands owned or occupied by the persons claiming the right to use the water, so long as the water is used beneficially thereon; provided, that if for any reason it should at any time become imprac- ticable to use water beneficially or economically for the irrigation of any land to which the right of the same is appurtenant, said right may be severed from said land, and simultaneously transferred, and become appurtenant to other land, without losing priority of right theretofore established, if such change can be made without detriment to existing rights, and in case of such change, the owner of such water right shall execute and acknowledge a proper instrument of transfer describing therein the land from and to which such water is transferred which in- strument shall be received in the county recorder's office of the county in which the land is situated. Sec. 61. Rights to water pass with land. E.xceptions. A right to the use of water appurtenant to the land shall ptias to the grantee of such land, and, in cases where such right has been exercised in irrigating difl'ercnt parcels of land at different times, such rights shall pass to the grantee of any parcel of land on which such right was exercised next ])receding the time of the execution of any conveyance thereof; subject, however, in all cases to payment by the grantee of any such Water Rights— 26 402 APPENDIX B. conveyance, of all amounts unpaid on any assessment then due upon any such right; pro\ided, that any such right to the use of water, or any part thereof, may be reserved by the grantor in any such conveyance, by making such reservation in express terms inserted in such conveyance, or may be separately conveyed. Sec. 62. Water rights transferred by deed. Exceptions. Water rights shall be transferred by deeds, in substantially the same manner as real estate, except when they are represented by shares of stock in a corporation, and such deeds shall be recorded in the office of the re- corder of the county where the place of diversion of the water from its natural channel is situated. Every deed of water right so recorded shall, from the time of filing the same with the recorder for record, im- part notice to all persons of the contents thereof, and subsequent pur- chasers, mortgagees and lien holders shall be deemed to purchase and take with notice. Sec. 63. Deeds must be recorded. Every deed of water right within this State hereafter made, which shall not be recorded as provided in this act, shall be void as against any subsequent purchaser, in good faith, and for a valuable consideration, of the same water right, or any portion thereof, where his own deed shall be first duly recorded. Sec. 64. Penalty. Any person, corporation or association who shall in any way interfere with, injure, destroy or remove any dam, head- gate, weir or other appliance for the diversion, apportionment or meas- urement of water, or who shall interfere with any of the persons au- thorized by this act to apportion water, while in the discharge of their duties, shall be guilty of a misdemeanor, and shall also be liable in dam- ages to any person injured by such unlawful act. Sec. 65. Obstructions to right of way forbidden. Whenever any per- son, corporation or association has the right of way for canals or other water courses, it shall be unlawful for any person to place or maintain in place any obstruction, by fence or otherwise, along or across such canals or water courses, without providing gates sufficient for the pas- sage of the owners of such canals or water courses or their agents. Any person, corporation or association violating the provisions of this sec- tion shall be guilty of a misdemeanor. Sec. 66. Legal advisers to State Engineer. In all matters requir- ing legal advice in the performance of his duties and the prosecution or defense of any action growing out of the performance of his duties, the Attorney General of the State and the district attorney of the dis- trict in which any legal question arises, shall be the legal advisers of the State Engineer, and they are hereby required to perform any and all legal services required of them by him, without other compensation than their salaries now or hereafter fixed by law. Sec. 67. Fees of State Engineer. The State Engineer shall collect STATE HTATUTKS. 403 the following fees, wliich sliall be paid by him into the State Treas- ury on the first Monday in January, April, July and October of each year: For examining and approving plans and specifications for any dam, one dollar for each and every foot in height of the dam to be built ; and if necessary, to inspect the site where the dam is to be built, an ad- ditional charge of ten dollars per day and expenses shall be made. For inspecting any diverting works, by request, ten dollars per day and expenses. For examining and filing applications to appropriate water, each, two and 50-100 dollars. For examining map, profile and drawings tluit are part of the proof of appropriation, five dollars. For approving and recording completed applications, two and 50-100 dollars. For issuing certificates of appropriation, each, one dollar. For examining and filing notices of protest, each, two and 50-100 dollars. For filing any other paper, one dollar. For certified copy of any paper, per folio, twenty cents. For blue print copy of any map, profile or drawing, per square foot, ten cents. For each certificate to copy of paper, drawing or map, fifty cents ; Provided that the provisions of section 67 shall not apply to works prosecuted under the supervision of the United States Reclamation ser- vice. Sec. 68. Assistance and equipment. For the })urpose of carrying into effect the provisions of this act, the State Engineer shall have power to employ all necessary assistants, purchase all necessary equip- ment, and do all other necessary things, the cost of which shall be paid by the State, upon presentation to the State Auditor of monthly state- ments, certified by the State Engineer; and approved by the State Board of Examiners; provided, that no expense shall be incurred by the State Engineer in the performance of his duties which will exceed the amoimt appropriated for that purpose. Sec. 69. Fees of referee and stenographer. Tlie fees of referees and stenographers shall be fixed by the court, and together with any other expenses, not herein provided for, that may be incurred in cariying out the provisions of this act, shall be paid out of the State Treasury, upon certificates from the proper district judge to the State Auditor of the amount due each person for such service. Sec. 70. Who may be made partie.«? to actions. In any action here- after commenced for the protection of rights acquired to water un- der the laws of this Stat<^, the plaintiff" may make any or all persons who have diverteect any works. (Rev. Stats. 932 et seq.) The constitution establishes four water divisions, with one superintend- ent for each (Const., art. VIII, sec. 4; Rev. Stats. 848), who controls waters within his division and ]>erforms whatever duties the State Engineer may assign (Rev. 408 APPENDIX B. Stats, 849, 850 ) , and may make regulations for his divi- sion. ( Rev. Stats. 851. ) Each division may, as neces- sity arises, be divided into water districts by the State Board of Control (Rev. Stats. 888), with one water commissioner for each district (Rev. Stats. 889), who has direct control over the administration of water within his district (Rev. Stats. 890 et seq.), subject to appeal to the division superintendent and from him to the State Engineer and then to court. (Stats. 1901, p. 107. ) He may make arrests. ( Rev. Stats. 772. ) Own- ers must maintain headgates and measuring devices or the division superintendent may shut off the water. (Stats. 1901, p. 99.) Disobeying officials is a misde- meanor. (Rev. Stats. 971; Stats. 1901, p. 95.) Determination of Existing Priorities. — Existing priorities are determined by the Board of Control, whose decree, subject to rehearing or appeal within one year, is final. (Stats. 1901, p. 70.) A notice of investigation is pub- lished, and the division superintendent then begins tak- ing evidence. {Hey. Stats. 861.) The claimant fills out blanks stating certain prescribed details, and swears thereto. (Rev. Stats. 863, 861.) If aggrieved by the evidence gathered by the division superintendent, he may have a special hearing. (Rev. Stats. 867 et seq.) From the data thus gathered the State Engineer pre- pares maps (Rev. Stats. 871), and from these data and the maps the Board of Control adjudges the right of each claimant. (Rev. Stats. 872.) The Board of Con- trol then issues a certificate of priority which is recorded with the county clerk. (Rev. Stats. 873.) The Board of (Joutrol may order a rehearing, or an appeal may be taken to court. (Rev. Stats. 871, 883.) Method of Appropriating. — Before commencing (or en- larging), application must be made to the State En- STATE STATUTES. 409 gineor, stating certain details on a form prescribed by him (Kev. Stats. 917), accompanied by duplicate maps. (Kev. Stats. 924 et soq., 918.) He keeps a record of date of receipt of ai)plication. {Ibid. ) If approved, he so in- dorses it and returns it to applicant, who may then go ahead (Kev. Stats. 920), and who must begin within a time fixed by the State Engineer (not over one year), and must com})lete it in a time likewise fixed (not over five years). (Rev. Stats. 922.) An appeal lies from the State Engineer to the Board of Control, and then to court. ( Rev. Stats. 923. ) Upon "perfection of the ap- propriation" a certificate is sent to the appropriator and recorded in the office of the county clerk. (Rev. Stats. 928.) Relation. — Priority dates from the filing of the ap- plication with the State Engineer. (Rev. Stats. 929.) Reservoirs, — Concerning dams over five feet in height, (Rev. Stats. 931), permit required from State Engineer. (Stats. 1903, p. 74.) Measurement of Water. — The standard of measurement is 1 cubic foot per second. (Rev. Stats. 968.) No allot- ment for irrigation shall exceed 1 cubic foot per second for each seventy acres of land. (Rev. Stats. 872.) 410 APPENDIX B. PHILIPPINE ISLANDS. 32 United States Statutes at Large, 677, 704. Con- cerning Philippines. — "Beneficial use shall be the basis, the measure, and the limit of all rights to water in said islands." A common phrase in the States rejecting ri- parian rights in toto (page 697). Sections 2339 and 2340, Revised Statutes of the United States, are sub- stantially enacted for the Philippines (page 704). APPENDIX C. FORMS. The following forms, with the exception of that given for California, have been adopted by the State En- gineers of the States having statutes prescribing forms, as set forth in the previous pages. In Wyoming these forms have been in use for fifteen years. Most of the States and Territories which adopted their irrigation codes during the present year (1905) have not yet pre- pared forms, while the forms herein given for Nevada have been in use but a short while, and are subject to change. In printing these forms in this book, the va- cant spaces have been shortened to a line or less, though some of the forms leave sufficient space in places to write in several lines of description. For the forms fol- lowing, the writer is greatly indebted to Mr. T. W. Jay- cox, State Engineer, Denver, Colorado; Mr. James Stephenson, Jr., State Engineer, Boise, Idaho; Mr. Adna Dobson, State Engineer, Secretai*y, Lincoln, Ne- braska; Mr. Henry Thurtell, State Engineer, Carson City, Nevada; Mr. A. L. Fellows, State Engineer, Bis- marck, North Dakota; Mr. John TI. Lvwis, State En- gineer, Salem, Oregon; Mr. Caleb Tanner, State En- gineer, Salt Lake City, Utah ; and Mr. Clarence T. Johns- ton, State Engineer, Cheyenne, Wyoming. i (411) APPENDIX C. FORMS. CALIFORNIA. No special forms are prescribed in California. Any arrangement containing the statements required by sec- tion 1415 of the Civil Code is a sufficient notice of ap- propriation. The following notice was upheld in Vineland Irr. Dist. V. Azusa Irr. Co., 126 Cal. 482, where it was relied on by appropriators claiming an appropriation of both surface and underground water. NOTICE. Azusa, August 27, 1883. To Whom It May Concern : We, (he undersigned, hereby claim the water here flowing in the channel of the San Gabriel Kiver, to the extent of 5,000 inches measured under a four-inch pres- sure, and the purpose for which the same is claimed is for irrigation and domestic use on lands in Azusa Town- ship and the County of Los Angeles, State of Califor- nia, and owned by the stockholders of the Azusa Water Development and Irrigating Company. The means by which it is intended to divert said water is by bedrock and surface dam, or both, tunnel, ditch, iron pipe, and flume, or any or either of such means as may be found most practicable, and the size of such tunnel will be six feet in height and six feet in (413) 414 APPENDIX C. width, and the size of such ditch to be eight feet in width and five feet in depth. The size of such iron pipe to be forty inches in diameter, and the size of such flume is six feet six inches in width, and six feet and six inches in depth, or larger, if necessary, to carry the amount of water here claimed. Such bedrock and surface dam, or either of them, to be constructed of rock, cement, logs, brush, and gravel, or either of them, or any of such material, or any other material found as well or better suited for the purpose of such construction. AZUSA WATER DEVELOPMENT AND IR- RIGATING COMPANY. By M. BALDRIDGE, Pres, This notice was attacked on the ground that it did not give the place where the same was or was to be posted ; but, as the notice was posted at the point which afterward became the mouth of the development tunnel, and specified the water "here flowing," the notice was held valid. FORMS. 415 COLORADO. Requirements for filing maps and statements of ditches and reservoirs, in compliance with chapter 126 of the Session Laws of 1903, and the regulations of the State Engineer's office thereunder.^ "Every person, association or corporation hereafter constructing or enlarging any reservoir or reservoirs, constructing, changing the location of, or enlarging any ditch, canal or feeder for any ditch or reservoir for the purpose of furnishing a supply of water for domestic, irrigation, power or storage, or for any other beneficial use, taking water from any natural stream, shall within sixty days after the commencement of such construction, change of location or enlargement, make filings in the office of the State Engineer for each specific claim." (Sec. 1, c. 126, Sess. Laws 1903.) The maps must be in duplicate and filed in the office of the State Engineer within sixty days of the com- mencement of construction, which time may be the date of actual constmction or the beginning of the survey. The duplicate is examined and certified to by the State Engineer, so that it may be returned and filed in tlie office of the county clerk within ninety days of said date of commencement of construction. Maps must be on a good quality of white linen draw- ing paper 24x36 inches, with a two-inch margin on the left-hand side, making the available space for the map 24x34 inches. All maps to be made of this size irre- spective of the size of the reservoir, or the ditch to be shown, and not folded. T'se white mounted drawing paper. 1 NOTE. — Circular issued bv the State Enu:ineer. 416 APPENDIX C. All maps to be returned bj mail should be accom- panied by postage. (18 cents in stamps for each sheet 24x36.) The scale of the map must correspondingly vary, but should be sufficient to clearly show each course and dis- tance. It is desirable in the case of reservoirs, that the scale should be four hundred feet to an inch, or larger when needed to properly show the proposed works, if practical. In case the sheet is not of suf- ficient size for this purpose, then the map must consist of two or more sheets. In such case each sheet should b<^. marked "Sheet No. 1," "Sheet No. 2," etc., and each sheet properly titled. The ink used in making these maps must be water- proof for permanent record, and either Higgins (water proof) or Windsor Newton's Liquid India Ink may be used for this pui'pose. It is also desirable to have both the signatures and dates put in with water-proof ink, if possible. All statements are placed upon the same sheet or sheets as the map. (Below is the form of title for the map and statement.) Form of Title. Map of the (ditch or) Reservoir. County, Colorado. Irrigation Division No Water District No Courses True, Magnetic Variation E. Scale of Map inch = feet. FORMS. 417 (Below is the form of statement to l)e used for a ditch filing.) Form for Ditch Filing. Know All Men By These Presents : That the under- sif>nod , claimant, whose postoflSce address is has caused to be located The Ditch as hereinafter mentioned, have made these several statements relative thereto, and filed in compliance with the laws of the State of Colorado. The acconi^ panyiug map, which shows the location of said ditch, forms a part of this filing and is hereby made a part thereof. First. The headgate is located at a point on the bank of from which it derives its supply of water, whence the corner of Section No , Township ......... Range of the Principal Meridian, bears feet. Second. The land to be irrigated consists of acres located as follows: Twp , Rge P. M. (If the water is claimed for other purposes it should be clearly stated.) Third. The depth of said ditch is feet. The width of said ditch is feet on the top. The width of said ditch is feet on bottom. The grade of said ditch is feet per 1,000 ft. The length of said ditch is feet. Fourth. The carrying capacity of said ditch is cubic feet per second of time (obtained by formula, giving the values of any co-efficients used), for wliich claim is hereby made for purposes. Water Rights— 27 418 APPENDIX C. Fifth. The estimated cost is | Sixth. Work was commenced hj survey (or actual construction), on the day of A. D. 190 (The map of the ditch should show the following.) First. The location of the headgate by course and distance to a corner of the public survey, or if upon un- surveyed lands, to some natural object, so that the same may be easily located. (NOTE.— The tie should be to a corner of the public survey.) Second. The general course of the stream should be shown and the name given. Third. The route of the ditch by course and distance. Fourth. The legal 40-acre subdivisions and other patented lands. Fifth. The ownership of all lands crossed by the ditch or canal. (Below is form of statement used for a reservoir filing.) Form for Reservoir Filing. Know All Men by These Presents : That the under- signed claimant . . . . , whose postoffice address is , has caused to be located The Reservoir as hereinafter mentioned, have made these several statements relative thereto, and filed in comr pliance with the laws of the State of Colorado. The ac- companying map, which shows the location of the said reservoir, forms a part of this filing and is hereby made a part thereof. First. Height of dam ...... . . . feet. FORMS. 419 Second. The following table gives the areas and ca- pacities for each foot in depth from the bottom of the outlet tulK' up to and including the high- water line. Depth in feet Area in sq. ft. Capacity Bottom of in cu. ft. outlet ft. 1 ft 2 ft 3 ft 4 ft (High- water line.) (etc., up to high- water line.) Total capacity of said reservoir is feet of water, for which claim is hereby made for purposes. Fourth. The source of supply of said reservoir is from Fifth. The estimated cost $ Sixth. Work was commenced by on the A. D. 190 (The map of the reservoir should show the following.) First. The location of the initial point of survey by course and distance to a corner of the public survey, or to some natural object if upon unsurveyed land. Second. The high-water line of the reservoir by course and distance, the location of the dam and ap- proximate contours at five foot intervals. (NOTE. — The five-foot contours are to show the general topography of the site within the liigh-water line, and need not be run out as carefully as the high-water line.) Third. The stream and name thereof upon which the reservoir is located should be shown on the map. Fourth. Ditches to and from the reservoir, name, 420 APPENDIX C. course and distance, with grade, section of water prism and capacity in cubic feet. Fifth. Legal 40-acre subdivisions and other patented lands. Sixth. The ownership of the land on which the reser- voir is located, or through which the inlet and outlet ditches pass. (Below is the form of the affidavit to be filled out.) Form of Affidavit. State of Colorado, County of ....... , being duly sworn on oath, deposes and says, that having read and exam- ined the map and statements hereon, that the same are true to the best of his knowledge and belief. (Claimant's signature.) Subscribed and sworn to before me this . . . . day of A. D. 19, My commission expires '' }ss. Notary Public. (The form of affidavit when claimant is a corporation.) State of Colorado, County of . . . of The Company, which was incor- porated under the laws of the State of on the day of , A. D. 1 , with a capital stock of |i , being duly sworn on his oath, deposes and says, that having FORMS. 421 read and examined the map and statement hereon, that the same are true to the best of his knowledge and be- lief. The Company. By (official title). Subscribed and sworn to before me this day of , A. D. 19 My commission expires ) Notary Public. (Form of the engineer's affidavit.) State of Colorado, County of , being duly sworn on his oath, deposes and says that he is the en- gineer of the Ditch (or reservoir), that the survey of the same and the map thereof was made by him (or that such map was made under his instructions) and that such survey is accu- rately represented upon this map; that he has read the statements thereon, and that the same are true of his own knowledge. Engineer (or Surveyor' Subscribed and sworn to before me this day of , A. D. 19 My commission expires Notary Public. 422 APPENDIX C. In General. For enlargements of either ditches or reservoirs, the facts must be given as in the above before and after the enlargement. For a protracted enterprise, where it is impossible to make complete surveys and maps within the sixty days, as complete a map and statement as possible should be filed. This should have the affidavit given below placed on the maps and properly signed and sworn to by the owner, which provides that a further and complete map will be furnished for filing as soon as the same can be completed. (Form of affidavit.) State of Colorado, ) I ss. County of j , being duly sworn on his oath, deposes and says, that though dili- gence has been used, because of it is impossible to make complete maps and statements within the sixty days required, and that a further and complete map will be furnished for filing as soon as the same can be completed. ( Claimant's signature.) Subscribed and sworn to before me this day of , A. D. 190. . . . My commission expires Notary Public. (NOTE.— The followinfr is a quotation of the statutes that bears on the causes for a preliminary filing of this kind: "Whenever, through the necessity for oxtenderl surveys requiring long periods of time, it shall be impracticable for the claimant or claimants to file a complete map and statement within sixty days, as required above, a map and statement as complete as may be practicable shall be filed, * * * " The reasons for filing a complete map later should bw covered by the above.) FORMS. 423 (The foUowiiifj sifiidavit is placed on the map that is to be filed in the office of the State Engineer,) State Engineer's OflQce, Denver, Colo. State of Colorado, ) City and County of Denver. ^ I hereby certify that this map and statement has been examined and approved by me as agreeing with the statutes of the State of Colorado, and the regulations of this office, and was accepted for filing on the day of , A. D. 19 State Engineer. By , Deputy. (The followiiifj is the form of affidavit to be placed on the dupli- cate or the one to be filed in the office of the county clerk after being signed by the State Engineer.) State Engineer's Office, Denver, Colo. State of Colorado, r SS City and County of Denver. t- I hereby certify that this map and statement has been examined and approved by me, and is a duplicate of the one filed in the office of the State Engineer on the day of , A. D. 19 f State Engineer. By , Deputy. (NOTE. — When maps or filings consist of more than one sheet the two affidavits of the State Engineer will not answer. The affidavits being of a different form will be placed on the maps in this office. 424 APPENDIX C. The filing fee is one ($1) dollar for each claim and one ($1) dollar for certifying to the duplicate copy. One claim consists of one ditch or reservoir deriving its supply from one stream. Two claims will consist of two ditches or reser- voirs deriving their supply of water from one source or one* reservoir, or one ditch deriving its supply of water from two different sources, etc.) FORMS. 4«5 IDAHO. The following: includes all forms from the application to appropriate to the license, arranji^ed in order; also form for transfer of use of water right to use on differ- ent land. As to maps, see statutes, ante. No Application for Permit to Appropriate the Public Waters of the State of Idaho. 1. Name of applicant Postoffice address : P. O County I. If applicant is a corporation give : (a) Date and place of incorporation (b) The amount of capital stock ( c ) The amount paid in (d) The names and addresses of directors II. The financial resources of the applicant are (a) Cash on hand (b) Treasury stock (c) Bonds to be issued ( d ) Other resources :. The quantity of water claimed is cubic feet per second. !. Source of water supply County of . Location of point of diversion K To be used for: 426 APPENDIX C. I. Irrigation and domestic use: (a) Number of acres to be irrigated. . .acres. (b) In the following legal subdivisions (A list of lands to be irrigated may be appended as a part of this application.) II. Mining, power, manufacturing or transporta- tion purposes: (a) To be used for (b) Amount of power to be generated .horse-power, ( c ) At what ix)int (d) Is water to be returned to any stream ? (e) If so, name stream and locate point of return. 6. Estimated cost of works . 7. Description of works for divei-sion : I. Kinds of works (reservoir, dam, ditch, flume, pipes, or otherwise) II. Dimensions of works: (a) Height of dam feet, length of dam at top feet, length of dam at bot- tom feet, material used in con- struction (wood, earth, stone or concrete) (b) Capacity of reservoir acre-feet. (c) Size of headgate, width feet, height feet. (d) Ditch (flume or pipe) width at bottom feet, width at water line feet, depth of water feet. Average grade per mile is feet. Length of ditch is miles, and it crosses the following quarter sec- tions to which is the point of intended use. FORMS. 427 8. Time rociiiired for tlie conipletion of the construc- tion of snch work is years. (The time must in no case exceed five years after date of approval of application.) 9. Time required for the complete application of the water to the proposed use is ad- ditional years. (The time must in no case ex- ceed four years after the date set for the com- pletion of works as defined in section 8.) Remarks : APPROVAL OF STATE ENGINEER. The number of this permit is Date of first receipt of application 190. . Returned to applicant for correction 190 . . Corrected application received 190. . Recorded in Book Paji^e Approved 190.. This is to certify that I have examined the within application for a permit to appropriate the public waters of the State of Idaho and hereby grant the same, subject to the followino; limitations and conditions: Good and sufficient bond to be filed in the sum of $ .on or before 190. . Work to begin on or before , 190 . . , and to continue diligently and uninterruptedly to com- pletion, unless temporarily interrupted by circum- stances over which permit holder has no control. One-fifth of the work above specified to be completed on or before The whole of said work to be completed on or before 428 APPENDIX C. The time for the proof of beneficial use of water ap- propriated in accordance herewith, to extend to Witness my hand this .day of 190.. State Engineer. (Endorsed: — ) No. Permit. To appropriate water from County, Idaho. Date of first receipt at office of State Engineer Returned to applicant for correction, Corrected application received , Recorded in Book . .Page. Approved Work to begin Bond to be filed One-fifth of work to be completed Whole work to be completed Final proof of use of water Fees I Notice of Proof of Completion of Works. (This blank must be filled out by holder of permit and forwarded by registered mail to the State Engineer at least 60 days before the time set for completion of works.) (P. O.) (Date) 190.. To the State Engineer of the State of Idaho, Boise, Idaho. Dear Sir: Notice is hereby given that at M. on the day of 190. ., at FORMS. 429 County of State of Idaho, before proof will be submitted of the completion of works for the diversion of cubic feet per second of the waters of in accordance with the terms and conditions of a ceiv tain permit heretofore issued by the State Engineer of the State of Idaho. 1. The name of the person or corjwration holding said permit is 2. The postoffice address of such person or the place of business of such corporation is , County of , State of Idaho. 3. The number of such permit is , and the date set for the completion of such work is 4. Said water is to be used for purposes. 5. Said works of diversion will be fully com- pleted on the date set for such completion, and the amount of water which said works are capable of con- ducting to the place of intended use, in accordance with the plans accompanying the application for such per- mit, is cubic feet per second. 6. The amount of lands for which said water is available is acres, particularly described as follows: (In case of all canals or other works designed to divert and carry more than 50 cubic feet of water per second, the followinor certificate must be signed by a well known and competent engineer.) I hereby certify that the facts set forth in the above notice are true. Engineer. 430 APPENDIX C. .desire, .that the' above notice be published, according to law, in the of , published in the county in which said works a»e situated; the expense of which publica- tion will be borne by ( Signature) (Endorsed: — ) No Notice of Proof of Completion of Works. Received Date of proof Place Notice sent to for publication on Notice of Publication. Notice is hereby given that at M. on the day of 190. ., at County of State of Idaho, before proof will be submitted of the completion of works for the diversion of cubic feet per second of the waters of in accordance with the terms and conditions of a cer- tain permit heretofore issued by the State Engineer of the State of Idaho. 1. The name of the person or corporation holding said permit is 2. The postoffice address of such person or the place of business of such corporation is County of , State of Idaho. 3. The number of such permit is , and the date set for the completion of such work is FORMS. 431 4. Said water is to be used for purposes. 5. Said works of diversion will be fully completed on the date set for such completion, and the amount of water which said works are capable of conducting to the place of intended use, in accordance with the plans accompanying the application for such permit, is cubic feet per second. fi. The amount of lands for which said water is available is acres, particularly described as follows : State Enjrineer. Permit No Proof of Completion of Works. Deposition of Holder. Question 1. — State your name, age, residence, occu- pation and postoflBce address. Answer Ques. 2. — 'If acting in behalf of a corporation, state its name, principal place of business, your position Avith reference to same, and your authority for appeaiv ing in its behalf. Ans _ Ques. 3. — State number and date of permit, amount of water you are authorized to divert, source, and point of diversion. Ans Ques. 4. — Stf will be submitted of the application to beneficial use of cubic feet per second of the watei*s of in accordance with the terms '436 APPENDIX C. and conditions of Permit No heretofore issued by the State Engineer of the State of Idaho. 1. The name and postoffice address of the person or corporation holding said permit are 2. The use to which said water has been applied is 3. The amount applied to beneficial use is 4. The place where said water is used is (if for irri-^ gation, give full and accurate description of the lands irrigated) 5. The name of the canal or ditch or other works by which said water is conducted to such place of use is 6. The right to take the water from such works is based upon Permit No ,. . . .. 7. The source of supply from which such water is diverted is 8. The date of the priority which said user is pre- pared to establish is I desire that the above notice be published, according to law, in the of , pub- lished in the county in which said water is to be used; the expense of which publication will be borne by me. (Sign) (Endorsed: — ) No Notice of Proof of Application of Water. Received Date of Proof Place Notice sent to for Publication on FOEMS. 437 Notice for Publication. Notice of Proof of Application of Water to Beneficial Use. Notice is hereby given that on the day of , 190. . . ., at , County «f • ., State of Idaho, proof will be submitted of the application to beneficial use of cubic feet per second of the waters of in accordance with the terms and conditions of Permit No , heretofore issued by the State Engineer of the State of Idaho. 1. The name and postoflfice address of the person or corporation holding said permit are 2. The use to which said water has been applied is 3. The amount applied to beneficial use is 4. The place where said water is used is ( if for irri- gation, give full and accurate description of the lands irrigated) 5. The name of the canal or ditch or other works by which said water is conducted to such place of use is 6. The right to take the water from such works is based upon Permit No , 7. The source of supply from which such water is diverted is 8. The date of the priority which said user is pre- pared to establish is 438 APPENDIX C. Permit No Proof of Application of Water to Beneficial Use. Deposition of Holder. Ques. 1. State your name, age, residence, occupation and postoffice address. Ans Ques. 2. If acting in behalf of a corporation, state its name, principal place of business (if a foreign cor- poration, give name and postoffice of statutory agent), your position with reference to same, and your author- ity for appearing in its behalf. Ans • Ques. 3. State number and date of permit, and date of priority you propose to establish under the permit. Ans... Ques. 4. State source of water supply and give exact location of point of diversion. Ans Ques. 5. Describe your works of diversion, and state amount of water they are capable of conveying from point of diversion to place of use, and give name of canal or ditch or other works by which water is con- ducted to such place of use. Ans... Ques. 6. State for what purpose water is used and describe place of use. ( If for irrigation, name each sub- division in which used, and number of acres in each sub- division that have actually been irrigated with said water.) Ans Ques. 7. If for other than irrigation purpose, state how applied, amount of horse-power generated, etc. Ans Ques". 8. What is the minimum amount of water re- quired for the use specified above? FORMS. 439 Ans Ques. 9. If you are not the person or representative of the corporation to whom above-mentioned permit was orij?inally issiicd, please state how ownership was ac- quired by present holder. Ans. . Ques. 10. State when, how, in what amount and to what extent the water diverted under above-mentioned permit has been used. Ans (Sign) I hereby certify that the foregoing testimony was read to the above subscriber before its signing, that I believe him to be the person he represents himself to be, and that said testimony was subscribed and sworn to before me, at my office in , County of , State of Idaho, on this day of , A. D. 190 (Endorsed: — ) Permit No Proof of Application of Water to Beneficial Use. Deposition of Holder. Amount of water second- feet Source County Purpose Place of use Date of priority Received and filed 440 APPENDIX C. The deposition of two witnesses on this form taken separately re- quired in each case. Permit No Proof of Application of Water to Beneficial Use. Deposition of Witness. Ques. 1. State your name, age, residence, occupation and postoffice address. Ans. Ques. 2. Are you acquainted with. the holder of Permit No ? How long have you known him, and where does he reside? Ans... Ques. 3. Have you read or heard read said Permit No , and you are familiar with its provisions and conditions? Ans Ques. 4. State source of water supply, place of di- version, and describe works for conveying water from I)oint of diversion to place of use. Ans... Ques. 5. How many second-feet of water do you esti- mate said works will safely conduct to place of use, and how much water have you seen being so conveyed? Ans... Ques. 6. State for what purpose water is used and at what place. (If for irrigation, give each subdivision in which water has been used and number of acres irrigated in each subdivision.) Ans... Ques. 7. If for power or other purx)oses than irriga- tion, state how water has been applied and to what ex- tent. Ans... Ques. 8. (If for irrigation) State character of land FORMS. 441 that has been reclaimed, and give your estimate of the amount of water required for its profitable cultivation. Ans Ques. 9. Have 3'ou any interest in the works, water or lands above mentioned? If so, in what way and to what extent? Ans Ques. 10. State when, how, in what amount and to what extent you have witnessed the application to bene- ficial use of the water diverted under said permit. , Ans (Sign) I hereby certify that the foregoing testimony was read to the above subscriber before its signing, that I believe him to be the person he represents himself to be, and that said testimony was subscribed and sworn to before me, at my office in , County of , State of Idaho, on this day of , A. D. 190 (Endorsed: — ) Permit No Proof of Application of Water to Beneficial Use. Deposition of Witness. Received and filed State of Idaho. Water License No. Whereas, On the day of , A. D. 190. . ., of County of [ and State of duly made application (No. ) to me for a permit to use 442 APPENDIX C. cubic feet per second of the waters of ,, ., County of , State of Idaho, for purposes; and, Whereas, On the .day of , A, D. 190 . . . , Permit No was issued to said ap-i plicant . . . for the diversion of said water, and provid- ing for the completion of the works of diversion therein described on or before the day of , A. D. 19 .... , and for the application to beneficial use of said water on or before the day of , A. D. 19 ; and. Whereas^ On the day of , A, D. 19. . , ., the holder. . of said permit duly made proof of the completion of adequate works for the diver- sion of cubic feet per second of said waters, as evidenced by my Certificate No , dated , confirming the completion of works of sufiicient capacity for diverting and conveying to the place of intended use cubic feet per second of water, with date of priority of and, Whereas_, On the .day of , A. D. 19 .... , proof was duly made of the application to beneficial use of cubic feet per second of said water ; Now^ Therefore^ By virtue of the authority vested in me by the laws of the State of Idaho, I hereby grant and confirm to of , the holder . . and owner . . of said Permit No , a perpetual right, dating from , to the use of cubic feet per second of the waters of , in the County of , and State of Idaho, or so much thereof as may be necessary for the purposes hereinbe- low mentioned, to be diverted at and conducted to and upon for the pur- FOEMS, 443 pose. . of subject, however, to the laws of the State of Idaho ap- plicable to a license for the use of the waters of the State, and subject, also, to the local or coiuinunity cus- toms, rules aud rej-ulatious which have been or may be adopted from time to time by a majority of the users from a common source of supply, canal or lateral from whicli such water may be taken, when such rules and regulations have for their object the economical use of such water. Witness my hand and the seal of my office, at Boise, Idaho, this day of , A. D., Nineteen Hundred and State Engineer. (Endorsed: — ) State of Idaho. Water License No To Source of Supply County. Amount glee. Feet. Point of Diversion. Place of Use Purpose Date of Priority Recorded in Book of Pa^-e Application for Transfer of Water Right. State of Idaho, ) '-SS County of \ , being first duly sworn, deposes and says : 444 APPENDIX C. That his name is ; that he is of lawful age, a citizen of the United States and of the State of Idaho, and that his postoffice address is That he is the owner and using a certain water right of of the waters of , County of , State of Idaho, decreed to by decree of Judge , of the Judicial District of the State of Idaho, in and for the County of , in the case of vs , said decree bearing date of (or obtained by virtue of License No , issued by the State Engineer of the State of Idaho, dated ), for the purpose of irrigating the following described lands situate, lying and being in the County of and State of Idaho, to wit : and am the person ( or cor- poration) to whom such right so issued, or have become the owner thereof in the following manner, i. e as per abstract of title of said water right hereto at- tached and made a part of this statement ; That said waters are now diverted from said stream at and conducted to the above described lands through as per map hereto attached and of this affidavit made a part; That affiant and petitioner desires to abandon the use of of said water upon the above described land, and to convey and use same upon the following tract, situate, lying and being in tlie County of and State of Idaho, to wit : FORMS. 445 That his ivasons for desiring- to iiuikc such transfer are as follows : That he intends to divert and convey said of water to the tract of land last above described in tlie following manner, to wit : as set forth upon the map hereto attached ; and That no one will be injured by such transfer. Wherefore, Afliant and Petitioner prays that the >Ntate Euerinitt('(l ^ I hereby recounuend that the State Engineer do not issue the certificate authorizing the transfer sought hereinabove. ) Commissioner of Water Division No By (Endorsed: — ) No Application for Tiansfer of Water Right. From To Stream County Applicant. Received Approved Certificate No issued and recorded in Book of Transfers, at page Notice of Proposed Transfer of Water Right. Notice is hereby givt^i that of has applied to the State Engineer of the State of Idali(» for a certificate authorizing him to transfer the use of of the water of 448 APPENDIX C. . . , from the land upon which it is now used, i. e to the foUowing described tract: ., And that, on the day of , A. D. 190 ... , at before the Water Commissioner of this Division, or his authorized agent, the opportunity will be given to any and all per- sons to appear and present for his consideration any reason or reasons why a certificate should not be issued authorizing such transfer. Full details of the proposed transfer may be obtained from , Watermaster of said stream. FORMS. 449 NEBRASKA. Permit No Water Division, No District, No The above to be filled out at the office of the Board. Application for a Permit to Appropriate the Waters of the State of Nebraska. I, of the Name of ])prson aij^^ning application. County of City or Village of which a resident. State of being Name of County. Name of State. duly sworn, upon my oath nay : 1st. — That the name of the applicant herefor is rost- Name of person or company for whom application is made. office Address, No Street, Number and Street. County, City or Village. County. State. 2d. — That it is proposed to use the water applied for herein, for state the purpose for which water is to be appropriated. 3d. — That the name adopted for the proposed ditch or canal is the Name of the canal. 4th. — That the source of the proposed appropriation is Name of creek or river from which water is to be taken. 5th. — That the amount of the appropriation desired is cubic feet per second Number of cubic feet. of time. Water Eights— 29 450 APPENDIX C. 6th. — That it is proposed to locate the headgate on the bank of the stream, North, South, East or West. in of see- Describe lot or forty acres in which situated. tion , Township Range Number. Number. of the Principal Number, East or West. Number. Meridian. 7th. — ^That the said ditch or canal will be. miles in length, and pass through the Number of miles. following sections of land, as shown on the accompany- ing township plats, viz. : Describe each section through which canal passes, stating Township and Kange. 8th. — That the dimensions of the proposed ditch or canal will be as follows : HEADGATE — width in clear feet; depth of water on floor at Number of feet. low water feet Depth in feet. CANAL OR DITCH. Location. Depth. Width on Bottom. Width on Top. Grade per Mile. Below headgate. . feet feet feet. . . . feet. At mile feet feet feet feet. At mile feet feet feet feet. At mile feet feet feet feet. At mile feet feet feet feet. Give dimensions at each point where reduced in size, stating miles from headgate. 9th. — That the material to be removed amounts to cubic yards, consisting of Number of yards. State character of material to be moved; whether rock, boulders^ sand, clay, etc. FORMS. 451 and that the total length of fliiniing required is feet. Number of feet. 10th. — That the estimated cost of the proposed con- struction is as follows: Earthwork, | Fluming, I Headgate, | Other expenses, | Total, I 11th. — That the proposed ditch or canal is to be built with the intention of supplying water to irrigate the following sections or quarter-sections of land, viz. : Give sections and quarter-sections, stating Number, Township, and Range. amounting in all to acres. Total number of acres. 12th. — That construction is to be begun within of the date hereof, and Number of days or months. the proposed w^orks are to be completed on or before state day, month, and year, 13th. — That the time estimated as necessary to pro- vide for the application of the amount of water here- in applied for to the beneficial use above stated is years from 190 .... Number of years. Month and day. 14th. — That the relation which the subscriber to this affidavit bears to said ditch, or canal, or other work, is that of and State whether owner, manager, superintendent, etc. that he is authorized to make this affidavit in behalf of the interests affected. Signature. 452 APPENDIX C. State of. . . . County of , . I hereby certify that the foregoing application was signed in my presence and sworn to before me by this day of 190.... [Seal.] Notary Public. State of Nebraska, ) y ss Office State Board of Irrigation. \ This is to certify that the foregoing application has been examined STATE BOARD OF IRRIGATION, State Engineer, Secretary. This is to certify that the foregoing application has been examined and is hereby granted subject to the fol- lowing limitations and conditions: 1st. The work of excavation or construction shall be- gin on or before 190 2d. The time for completing the work of construc- tion shall extend to ,. 190 3d. The time for completing the application of water to the beneficial use indicated shall extend to 190 4th. The water appropriated shall be used for the purpose of irrigation. 5th. The prior right of the owners of land bordering on tliis stream, or through which this stream flows, to so much of the natural flow of the stream as is neces- sary for domestic uses, including stock water, must be respected. FORMS. 453 6th. The prior riglits of all persons who, by com- pliance with the laws of the State of Nebraska, have acquired a rigiit to the use of the waters of this stream must not be interfered with by this appropriation. Tth. The amount of the appropriation shall not ex- ceed cubic feet per second of time ; neither shall it exceed the capacity of said ditch or canal, nor the least amount of water that experience may hereafter indicate as necessai^y for the production of crops in the exercise of good husbandry; and, further, said appro- priation, under any circumstances, shall be limited to one-seventieth (1-70) of a cubic foot per second of time, for each acre of land to which water is actually and usefully applied, on or before STATE BOARD OF IRRIGATION. State Engineer, Secretary. Approved 190 (Endorsed :- — ) No Division No District No Application foi- a Permit to Appropriate the Waters of the State of Nebraska. State of Nebraska, s^ Office State Board of Irrigation. '' This instrument was filed for record at o'clock noon, on the day of 190. . . . and duly recorded in Book of the Rec- ord of Applications for Appropriations on Page State Engineer, Secretary. 454 APPENDIX C. Township Plats — Showing Line of Ditch or Canal. (Tlus accompanies the application for permit.) The following township plats, in num- No. filled out. ber, show where the said ditch or canal heads, and where it crosses each quarter-section of land along the line of its course. Signature of person signing application. NOTICE.— The blanks for No. of To^^^^ship, Range, etc., at top of blank plats, must be properly filled out. Plat No. 1 should be used in ■which to locate the head of the canal, and Plats No. 2, No. 3, etc., must be used in their order for each successive township into which the canal enters. All tracing, lettering, etc., must be done in ink, free from blurs or blots. If four blank plats are not sufficient to show the entire line of the canal, a special additional blank will be furnished free of charge, upon application to the office of the State Board. (Here follows township plat in the usual form as shown on page 516 below. Enough plats must be used to show the whole ditch in all town- ships into which it extends.) (The following is accompanied by township plats similar to those in the preceding form.) Claim, No Priority, No Water Division, No District, No (The above to be filled out at the office of Board.) Claim for the Waters of the State of Nebraska. (For Adjudication of Existing Priority.) T of the ^} (Name of person signing claim.) County of (City or Village of which a resident.) (Name of County.) State of being duly sworn, upon my (Name of State.) oath say : rORMS. 455 Ist. — That the name of the claimant is Postoffice Address, (Name of person or company for whom claim is made.) No Street, (Number Jind Street.) (City or Village.) (County.) County, (State.) 2d. — That tlie water is claimed for the purpose of (State the purpose for which water is claimed.) 3d. — That the name adopted for the ditch or canal is the (Name of the ditch or canal.) 4th. — That the source of the appropriation claimed is (Name of creek or river from which water is claimed.) 5th. — That the amount of the appropriation claimed is cubic feet per second of time. (Numl)er of cubic feet.) 6th. — That the headgate is located on the (North, South, bank of the stream, in East, or West.) (Describe lot or forty of Section , Township , acres in which situated.) (Number.) (Number.) Range of the Principal (Number, East or West.) (Number.) Meridian. 7th. — That the said ditch or canal, (Numb(>r of miles.) miles in length, passes through the following sections of land, as shown on the accompanying township plats, viz. : (Describe each section throujih which canal passes, stating Township and Ranjre.) (a) That the portion of said ditch or canal, miles in length, indicated on said plats by a (Number of miles.) black line is completed. 456 APPENDIX C. (b) That tlie portion of said ditch or canal, miles in length, indicated on said plats by a (Number of miles.) red line is not completed. 8th. That the dimensions of said ditch or canal are (and will be for the uncompleted portions) as follows: HEADGATE— width in clear feet ; (Number of feet.) depth of water on floor at low water feet. (Depth in feet.) CANAL OR DITCH. Location. Depth. Width on Bottom. Width on Top. Grade per Mile. Below headgate. . feet feet feet feet. At mile . feet feet feet feet. At mile feet feet feet feet. At mile feet feet feet feet. At mile feet feet feet feet. At mile. . . .,. . feet feet feet feet. At mile feet feet feet feet. (Give dimensions at each point where reduced in size, stating miles from headgate.) 9tii. — That the total excavation amounts to cubic yards of material, consisting of (Number of yards.) , _ and that the total (State character of material; whether rock, boulders, sand, clay, etc.) length of fluming required is feet. (Number of feet.) (a) That the material thus far removed amounts to cubic yards. (Number of yards.) (b) That the fluming completed amounts to feet. (Number of feet.) 10th. — That the estimated cost of said ditch or canal is as follows: Earthwork, | Fluming, | Headgate, | Other expenses, | Total, | FORMS. 457 (a) That the expend itiircs thus far incurred are as follows: Earthwork, | Fluming, .f Headgate, I Other expenses, | Total, 11th. — That it is the intention that the said ditch or canal shall supply water to irrigate the following sec- tions or quarter-sections of land, viz. : (Give sections any new filings made previously to April 4th, 1895, must not be incluilrd in the above claim. Individuals or cor- porations, desiring to make such extensions or enlargements, must make application for a permit from the State Board, as provided by the Statute now in force. (Endorsed: — ) Claim, No Priority, No Division, No District, No. . Claim for the Waters of the State of Nebraska. State of Nebraska, ) V ss Office State Board of Trri,G:ati()n. ) This instrument was filed for record at o'clock, noon, on the day of 189. . .and duly recorded in Book of the Record of Claims for Appropriations on Page State Engineer, Secretary. 460 APPENDIX C. NEVADA. No Application for Permit To Appropriate the Public Waters of the State of Nevada. 1. Name of Applicant Postoffice Address : P. O County I. If applicant is a corporation, give (a) Date and place of corporation (b) The amount of capital stock ( c ) The amount paid in (d) The names and addresses of Directors 2. The quantity of water claimed is cubic feet per second. 3. Source of water supply 4. Location of point of diversion 5. To be used for: I. Irrigation and domestic use : ( a) Number of acres to be irrigated acres. (b) In the following legal subdivisions (A list of lands to be irrigated may be ap- pended as a part of this application.) II. Mining, power, manufacturing or transporta- tion puri)oses : (a) To be used for (b) Amount of power to be generated horse power. FORMS. 461 (c) At what point (d) If water is to be returned to stream ("yes" or "no") (e) If "yes" at what point 6. Estimated cost of works 7. Description of works for diversion : I. Kind of works (reservoir, dam, ditch, flume, pipes or otherwise) II. Dimensions of works: (a) Height of dam, feet; length of dam at top, feet ; lengtli of dam at bottom, feet ; ma- terial used in construction (wood, earth, stone or concrete) (b) Capacity of reservoir acre-feet. (c) Size of headgate — width, feet; height, feet. (d) Ditch (flume or pipe) — width at bot- tom, feet ; width at water line, feet ; depth of water, feet. Average gi*ade per mile is ... . feet. Length of ditch is miles, and it crosses the following quarter sections : to which is the point of intended use. Remarks. (Tlus space not to bo written in by applicants.) A Plat showing line of ditch, etc., accompanies this application, as shown on page 515 below. 462 APPENDIX C. Notice of Application for Permission to Appropriate the Public Waters of the State of Nevada. Notice is hereby given that on the . .day of , 190. . ., in accordance with Section 23, Chapter XLVI, of the Statutes of 1905, one of , County of and State of , made application to the State Engineer of Nevada for permission to appropriate the public waters of the State of Nevada, Such appropriation is to be made from at points. '. by means of and cubic feet per second is to be conveyed to points by means of .and there used The construction of said works shall begin before and shall be completed on or before The water shall be actually applied to a beneficial use on or before Signed : State Engineer. Approval of State Engineer. The number of this permit is Date of first receipt of application. ...,...., 190. . . . Returned to applicant for correction , 190. . .. Recorded in Book page Approved , 190 This is to certify that I have examined the within ap- plication for a permit to appropriate the public waters of the State of Nevada and hereby grant the same, sub- ject to the following limitations and conditions: FORMS. 463 One-fifth of the work above specified to be completed on or before The whole of said work to be completed on or before The time for the proof of beneficial use of w^ater ap- propriated in accordance herewith, to extend to Witness my hand this day of , 190.... State Engineer. NOTE. — The State Engineer of Nevada writes under date of August 30, 1905: "Tlie law concerning new appropriations of water was passed by the last legislature, and I have not yet adopted forms for the proof of these appropriations." (The following form is used in establishing the priority of existing rights.) The State of Nevada. Proof of the Appropriation of Water. State your name 1. Q. Postoffice. A 2. Q. State the use to W'hich the water has been applied. A 3. Q. State the means of diversion employed. A : 4. Q. If through a ditch state its name. A 5. Q. (a) State date of sun-ey of the ditch or other distributing works through which the water 464 APPENDIX C. claimed is diverted, (b) The date when the construc- tion of such ditch was begun and when completed. A. (a) (b) 6. Q. If any enlargements w^ere made state the date when begun and the date when completed. A 7. Q. State dimensions of the ditch as originally constructed, and as enlarged. A 8. Q. State the name of person, association of per- sons or corporations who built the ditch or canal, and the name or names of its present owners. A 9. Q. State the nature of your title to the land for which an appropriation is claimed, and if not owned by you give the name of the owner and the nature of the possessory right which you exercise. A 10. Q. State the year when water was first used for irrigation or other beneficial purposes, and by whom. If for irrigation, give the number of acres watered the first year, with the legal subdivisions on which the water was used, and as near as may be the acres irrigated in each legal subdivision. A 11. Q. State the number of acres watered each sub- sequent year, and give the legal subdivisions on which the water was used, and as near as may be the acres ir- rigated in each legal subdivision. A ' 12. Q. If water is claimed for irrigation, give the legal subdivisions of land owned or controlled by you for which an appropriation is claimed. A FORMS. 465 13. Q. State the acreage said ditch is capable of watering, give the legal subdivisions of land which it can be made to irrigate, and state who owns said land. A 14. Q. State the character of the soil and the kind of crops cultivated. A 15. Q. Are you an owner in said ditch? If so state your proportionate interest therein. A 16. Q. The plat prepared by the State Engineer is hereby accepted as showing correctly the location of the. Ditch and the land which can be ir>- rigated therefrom. A 17. Q. TMien does your irrigation season begin and when does it end? A 18. Q. If water is used for other purposes than irri- g'ation, state the nature of such use, the time when such use began, and how much water is required for such purpose. A. . 19. Q. During what months is the water used? A 20. Q. Have you had sufficient water each year since the use for which an appropriation is claimed be- gan? If not, state the years of scarcity, the months when the supply was insufficient, and the reason of such scarcity. A Signed : Water Rights— 30 466 APPENDIX C. , Nevada, , 190 . . Sworn to and subscribed before me at this day of , 190 J Notary Public. Remarks : (Endorsed: — ) Proof of Appropriation. Date of Appropriation PEIOEITIES. General. Stream Name of Stream Tributary of Name of Claimant. Filed in this office this day of , 190.... State Engineer. (The following form is issued to existing owners who have established their priority.) The State of Nevada. Certificate of Appropriation of Water. Certificate Record Page Where.\s, has presented to the State Engineer of the State of Nevada proof of appro- priation of water from through the Ditch for irrigation of the lands herein descril)ed, lying and being in County, Nevada, and for. . FORMS. 467 Now Know Yk, That the State Enoiueer, under the provisions of Section 13, Chapter 4, Statutes of Nevada, 190;^, liMs (leterniincd the priority and amount of such appropriation as follows : Name of Appropriator ; Postoffice Address , Nevada. General Priority Number on main stream ; Priority Number on Amount of A])i)i()priati()n, acre-feet per year; Amount of prior approi)riations, acre- feet per year; Date of Appropriation ; Description of land to be irrigated, and for which this appropriation is determined. The right to water hereby determined is limited to irrigation and the use is restricted to the place where acquired and to the pui-pose for which acquired ; rights for irrigation not to exceed three acre-feet per year for each acre of land for which a])pr()priation is herein determined In Testimony Whereof^ I, , State Engineer, have hereunto set my hand this day of , A. D. 190. ... State Engineer. 468 appendix: c. NORTH DAKOTA. No Water Division No District No [Blanks to be filled by the State Engineer.] Application for a Permit To Appropriate Water Within the State of North Dakota. [NOTE. — Draw a line through items not applicable.] Name of applicant PostoflQce address , County , State. I. If a corporation : (a) Name of same (b) Date and place of incorporation. ( c ) Amount of capital stock ( d ) Amount paid in (e) Names and addresses of directors: [NOTE.— A certified copy of articles of incorporation must ac- company the application.] II. Method of accomplishing the work and finan- cial resources of the applicant : (a) Method of accomplishing the work. (Whether by contract, employment of others, or by direct labor) (b) Cash on hand, I (c) Treasury stock, I ( d ) Bonds to be issued, | ( e) Other resources, | 2. Name of diversion works 3. Quantity of water claimed. . .cubic feet per second. FORMS. 459 4. Source of water supply 5. Location of point of diversion on bank. (Right or left bank looking down stream.) 6. Annual periods during which water is to be used 7. To be used for : I. Irrigation or domestic use : (a) Number of acres to be irrigated acres, (b) Legal subdivisions to be irrigated [NOTE.— A list of lands to be irrigated, giving each subdivision ?nd fraction with acreage thereof, should be written here, or may be appended as a part of this application. Same must also be shown on accompanying map.] (c) Statement as to domestic use (giving location, etc. ) 11. Mining, power, manufacturing, transporta- tion, or other purposes : (a) Nature of use (b) Amount of power to be generated , horse-power, (c) Location of plant (d) Method of developing power (e) Point where water will be returned to stream 8. Estimated cost of works : (a) Headgates, I (b) Pumping plant, I (c) Pluming, I (d) Canal— earth, $ rock, I (e) Other structures f Total, 470 APPENDIX C. 9. Description of diversion works : I. Nature of works: (ReseiToir, dam, ditch, flume, pumping plant, etc. ) II. Dimensions of works : (a) Dam: Height feet; length at bot- tom feet ; length at top feet ; thickness at bottom feet ; thickness at top feet ; slope of front (water) face. ; slope of back face ; material used in construction (b) Reservoir: Capacity when filled. ..... acre-feet. Surface area at high- water mark acres. Depth at Outlet— Feet Surface Area at Each Feet of Depth at Outlet— Acres Capacity — Acre-feet ( c ) Headgate : Width feet ; height feet ; Material (d) Canal: Total length miles. Location Below Width at Water Headgate Depth Bottom Width Line Grade per Mile At. At. At. At. At. mile. ... . . feet. ... . . feet mile. ... . . feet.... . . feet mile. .. . . . feet. ... . . feet mile. ... . . feet . . . . . . feet mile . , . . . . feet. ... . . feet feet, feet, feet, feet, feet. feet feet feet feet feet [Give dimensions where reductions in size are made.] 10. Time required for completion of work years. FORMS. 471 11. Time required for complete application of water to the proposed beneficial use years. 12. Choice of newspaper for publication of notice of intention to appropriate State of North Dakota, ) •County of p ' I, , being first duly sworn on my oath, depose and say : That my relation to tW. above- described undertaking is that of , (Owner, manager or engineer) that I have read the above and foregoing statement, and examined the map accompanying the same, and that I know" of my own personal knowledge that the mattena therein stated and shown are true. Signed Subscribed and sworn to before me this day of 190... Notary Public (or other qualified officer). Remarks (by State Engineer) : State of North Dakota, County of Bismarck, N. Dak., 190 This is to certify that the foregoing application was received at this office at o'clock M. upon the day of , 190. . ., and that after ex- amination it was State Engineer. By Deputy. 472 APPENDIX C. Number of Permit Date of first receipt of application 190. . Date of return to applicant for coiTection 190. . Date of receipt of corrected application 190 . . Date from which application may claim right. . . .190. . Approved 190 . . Recorded in Book .... Page . . . This is to certify that I have examined the foregoing application for a permit to appropriate water of the State of North Dakota, and I hereby grant the same as stated herein, subject, however, to the following limita- tions and conditions : 1st. The equivalent of at least one-fifth of the work above specified is to be completed on or before , 19 2d. The whole of said work is to be completed on or before ,19 3d. The limit of time for proof of beneficial use of water appropriated in accordance herewith is , 19 4th. The water appropriated shall be used for the purpose of 5th. The prior right of all persons who, by com- pliance with the laws of the State of North Dakota, have acquired a right to the use of water must not be in- juriously affected by this appropriation. 6th. The amount of appropriation herein granted shall not exceed cubic feet of water per second of time ; neither shall it exceed the capacity of the above- described system of diversion works, nor the least amount of water that experience may hereafter indicate as necessary for the production of crops in the exercise of the best husbandry ; and further, said appropriation must be limited to not more than one-eightieth (1-80) of one cubic foot of water per second of time for each acre FORMS. 473 of laud to which water is actually and beneficially ap- plied on or before , 19. ... ; said water to l)e used during the following described annual periods : Witness my hand this day of. 190.... State Engineer. By Deputy. (Endorsed: — ) No Division No District No Permit to appropriate water from county, North Dakota. Name of applicant Name of diversion works Date of first receipt at office of State Engineer , 190.... Returned to applicant for correction , 190. . . Corrected application received , 190. . . Date of water right , 190 . . . Recorded in book Page One-fifth of work to be completed , 19. . . . Whole work to be completed , 19 ... . Final proof of use of water , 19 . . . . Approved , 190. . . . State Engineer. By Deputy. 474 APPENDIX C. No. Water Division No District No [Blanks to be filled by the State Engineer.] Application for a Permit — ^Enlargement. [NOTE. — Draw lines through items not applicable. Where not otherwise stated all items refer to the proposed enlargement or ex- tension.] Name of applicant PostoflQce address , County , State. I. If a corporation : (a) Name of same (b) Date and place of incorporation. , (c) Amount of capital stock ( d ) Amount paid in , ( e ) Names and addresses of directors : [NOTE. — A certified cop}^ of articles of incorporation must accom- pany the application.] II. Method of accomplishing the work and finan- cial resources of the applicant : (a) Method of accomplishing the work. (Whether by contract, employment of others, or by personal labor ) (b) Cash on hand, | (c) Treasury stock, I (d) Bonds to be issued, | (e) Other resources, | 2. Name of existing diversion works Permit No Name of enlargement or extension. 3. Quantity of water claimed by enlargement or ex- tension cubic feet per second. 4. Source of water supply 5. Location of point of commencement of extension FORMS. 475 6. Annual periods during which water is to be used 7. To be used for : I. Irrigation or domestic use : (a) Number of acres to be irrigated acres. (b) Legal subdivisions to be irrigated [NOTE. — A list of lands to be irrigated, giving each subdivision and fraction with acreage thereof, should be written here, or may be appended as a part of this application. Same must also be shown on accompanying map.] (c) Statement as to domestic use (giving location, etc. ) II. Mining, power, manufacturing, transporta- tion, or other purposes : ( a ) Nature of use ( b) Amount of power to be generated horse-power. (c) Location of plant (d) Method of developing power (e) Point where water will be returned to stream. ., 8. Estimated cost of works : (a) Headgates, | (b) Pumping plant, I (c) Fluming, I (d) Canal— earth, $ rock, I (e) Other structures $ Total, Description of divei*sion works : I. Nature of works: (Reservoir, dam, ditch, tiumc, pumping plant, etc.) 476 APPENDIX C. II. Dimensions of works: (a) Dam : Height feet; length at bot- tom feet ; length at top feet ; thickness at bottom feet ; thickness at top feet; slope of front (water) face. ; slope of back face ; material used in construction ( b ) Reservoir : Capacity when filled acre-feet. Surface area at high^ water mark acres. Depth at Outlet— Feet Surface Area at Each Feet of Depth at Outlet— Acres Capacity— Acre-feet ( c ) Headgate : Width feet ; height feet ; Material (d) Canal : Total length miles. Location Below Headgate , At. At. At. At. At. mile, mile, mile, mile, mile. Width at Water Depth Bottom Width Line Grade per Mile Tfeet . . feet . . feet . . feet . . feet feet, feet, feet, feet, feet. feet, feet, feet, feet. feet. feet, feet, feet. feet. feet. [Give dimensions where reductions in size are made.] 10. Time required for completion of work years. 11. Time required for complete application of water to the proposed beneficial use years. 12. Choice of newspaper for publication of notice of intention to appropriate FORMS. 477 State of North Dakota, ,,ss. County of. I , being first duly sworn on my oath, depose and say: That my relation to the above- described undertaking is that of j (Owner, manager or engineer) that I have read the above and foregoing statement, and examined the map accompanying the same, and that I know of my own personal knowledge that the matter^ therein stated and shown are true. Signed Subscribed and sworn to before me this day of 190... Notary Public (or other qualified officer), Remarks (by State Engineer) : State of North Dakota, ) County of ) Bismarck, N. Dak., 190 .... This is to certify that the foregoing application was received at this office at o'clock M. upon the day of , 190. . . , and that after ex- amination it was State Engineer. By Deputy. Number of Permit Date of first receipt of application 190. Date of return to applicant for correction 190. 478 APPENDIX C. Date of receipt of corrected application 190 . . . Date from which application may claim right, . . .190. . . Approved 190. . Recorded in Book. . . . Page This is to certify that I have examined the foregoing application for a permit to appropriate water of the State of North Dakota, and I hereby grant the same as stated herein, subject, however, to the following limita- tions and conditions : 1st, The equivalent of at least one-fifth of the work above specified is to be completed on or before , 19 2d. The whole of said work is to be completed on or before ,19 3d. The limit of time for proof of beneficial use of water appropriated in accordance herewith is , 19 4th. The water appropriated shall be used for the purpose of 5th. The prior right of all persons who, by com- pliance with the laws of the State of North Dakota, have acquired a right to the use of water must not be in- juriously affected by this appropriation. 6th. The amount of appropriation herein granted shall not exceed cubic feet of water per second of time ; neither shall it exceed the capacity of the above- described system of diversion works, nor the least amount of water that experience may hereafter indicate as necessary for the production of crops in the exercise of the best husbandry ; and further, said appropriation must be limited to not more than one-eightieth (1-80) of one cubic foot of water per second of time for each acre of land to which water is actually and beneficially ap- plied on or before , 19 ; said water to be used during the following described annual periods : FORMS. 479 Witness my hand this day of. 190.... State Engineer. By Deputy. (Endorsed: — ) No Division No District No Permit to appropriate water from county, North Dakota. Name of applicant Name of diversion works Date of first receipt at office of State Engineer 190.... Returned to applicant for correction , 190. . . Corrected application received , 190. . . Date of water right , 190 . , . Recorded in book Page One-fifth of work to be completed , 19. . . . Whole work to be completed , 19 ... . Final proof of use of water , 19 . . . . Approved , 190 .... State Engineer. By Deputy. 480 APPENDIX C, Acknowledgment of Receipt of Application. No Bismarck,. 190. . . Your application dated 190 . . . for permit to appropriate water from. ., through the together with a fee of |5.00 for the ex- amination of same, the receipt of which is hereby ac- knowledged, was received this day and has been duly filed under the temporary number The ap- plication will be examined in regular order as soon as possible, after which you will be notified as to further action on your part. Very respectfully, State Engineer. By Deputy. Notice of Intention to Appropriate Water. No (First Publication 190. . ..) Appropriation of Water. Ofifice of the State Engineer, Bismarck, N. D., 190. . . Notice is hereby given that whose postoflfice address is County, N. D.^ has made an application in accordance with the pro- visions of the irrigation laws of North Dakota for a permit to appropriate for beneficial use cubic feet of water per second of time from through FORMS. 481 the , the point of diversion of which is to be located upon the bank of said stream in the 1-4 of the. , . .1-4 of section. . . .township. . . .range. . , . said water to l)e used for the purpose of upon the This application will be taken up by the State En- gineer at his office at Bismarck for consideration and appropriate action upon the day of 190... at 9 A. M., at which time all persons who be- lieve that the prior rights would be injuriously affected, or that the allowance of the permit would be detrimen- tal to the public welfare, and also parties making the application, and to be benefited, are notified to be pres- ent either by sworn affidavit or in person for the purpose of presenting any relevant testimony. State Engineer. No Proof of Publication. State of North Dakota, ) County of \ being duly sworn, deposes and says that the annexed printed copy of Notice of In- tention to Appropriate Water was taken from the a newspaper which, during the whole time of publication of said notice hereinafter stated, has been and is printed and published in the of , County of and State of North Dakota. That the said notice was published in said newspaper on the following dates : in each and every issue of the full number thereof, corn- Water Eights— 31 482 APPENDIX C. mencing on the day of 190 , and end- ing on the day of 190 . . . , upon which days or times of publication aforesaid the newspaper was regularly published, and that during the whole time of said publication he was the printer. . . . and publisher .... of the said newspaper. Subscribed and sworn to before me this day of A. D. 190.... Notary Public County, N. D. Maps. I. The map of a ditch shall show : (a) Title, giving name of ditch or canal. (b) Location of headgate, by course and distance to a government corner, or if on unsurveyed lands to some natural object so that the site can be easily found. True courses are to be used, the magnetic variations be- ing also stated. (c) Stream, and name thereof, from which water is diverted. (d) Route and total length of ditch or canal. (e) Lands crossed with names of owners thereof. (f) Lands to be irrigated, with names of owners thereof. (g) Locations, with elevations thereof, of bench marks at the headgate or other suitable points. II. The map of the reservoir shall show : (a) Title, giving name of reservoir. (b) Location of initial point of survey, as in case of canal. FORMS. 483 (c) The location of the dam, of tlie hi\'yoiiiiiiegin within one year from date of approval. The time for completing the work shall terminate on December 31, 190 Water Eights— 33 514 APPENDIX C. Witness my hand this day of. A. D. 190.... State Engineer. (Endorsed: — ) No Application for a Permit to Construct the Reservoir and to Store for a Beneficial Use the Un- appropriated Water of the State of Wyoming. Water Division No District No The State of Wyoming, | ^^ State Engineer's Office, j This instrument was received and filed for record on the day of , A. D. 190. . ., at o'clock M., and duly recorded in Book 3 of Reser- voirs on Page State Engineer. FORMS. 51£ Section . . . . , Township north, Range east. i : : : -\ 1 1- i i : 1 1 —J The above plat correctly shows ray irrigated and irrigable lands under Plat accompanying application for permit to appropriate water in Nevada. (See page 4G1, supra.) This cut is reduced from the or- iginal.) 516 APPENDIX C. Township. . of 6th P. M. Range. . . . . . County , "" ^ ^ n ^ ^ r- M i ■" L [ J, J ^ 7 ' f r J I \ 1 O r 1 T -t 8- - -i ^ 1 3- - - -1 2 l -^ 2- - -2 9 ^ n /l ^ — -3 r o 3 _2 7 o 6- ~ -2 5- - *" ' 1 1 1 1 1 ^ 3 6- - 1 ■~n^ 1 1J...L - _ Township plat accompanying application for waters in Nebraska. (See page 454, supra.) This cut is reduced from the size of the or- iginal. I f INDEX. [References are to Pages.] ABANDONMENT. See Forfeiture, general principles of, c. XII. definition of, 268. evidence rebutting, 268. no presumption of, 269. accession and, 272. distinguished from forfeiture, 273. efifect of, 186. effect of payment of taxes on, 274. for failure of usefulness, 166, 189, 210. conditional, 188. decay of ditches is evidence of, 263. typical case of, 263. no revival of right by sale after, 263, recapture of abandoned water. See Recapture. intent to recapture prevents, 264. when stream ceases to flow, 267. implied, 186. of ditch not necessarily of water right, 189, 194, 263, 275. of ditch gives no right to build another elsewhere, 200. is voluntary and a question of fact, 263, 268. concurrence of act and intent necessary, 263. no abandonment of riparian rights, 302. See Eiparian Eights, parol sale. See Parol Sale. sometimes held not, 187, 188. as abandonment, 186, 187, 265. faulty deed as abandonment, 265. non-user. See Non-user. unreasonable time of, 266. not necessarily abandonment, 268. a question of fact for jury, 268. for five years. See Forfeiture. of waste, 264, 270, 271. See Waste. from artificial watercourse, 270, 271. drainage ditch, 270. ceasing abandonment of, 271. use of by others, 160. (517) 518 INDEX. [References are to Pages.] ABSOLUTE EIGHT. in percolating water, old rule. 134. of property, 82. to water in artificial watercourse, 120. to water pumped from mine, 198. ACCELERATION. See Riparian Rights. ACCESSION. water becoming part of stream by, 272. ACCOUNTING. by trespasser to true owner, 161. ACEQUIAS. See Mexican Law. Arizona law of, sec. 20. ACQUIESCENCE. of United States in doctrine of appropriation, 24, 50, 51, 31. See Appropriation, Nature of; Customs of Miners; United States; California Doctrine; Public Lands; Federal Statutes, etc. ACT. See Statutes. ACT OF CONGRESS. See Federal Statutes. of 1866 and 1870, Rev. Stats. 2339, 2340, the basis of the law of appropriation. See Federal {statutes, constitute an express grant, 53. appropriations are deraigned under, 51. references to, 309. ACT OF GOD. and percolating water, 231. ACTION. See Equity; Parties; Suit, etc. joinder of parties in, 247. joinder of causes of, 247, cross-complaint in, by riparian owner, 249, strangers to, rights of cannot be set up, 240. to quiet title, 169. to determine priorities. See Adjudication, at law, sees. 168, 186. for abatement of nuisance, 245, right of, effect of doctrine of relation, 164. at law to protect water rights, sec. 186. for diversion of percolating water, 134. ACTUAL APPLICATION TO USE. See Abandonment; Method of Appropriation; Purpose of Appropriation, etc. necessity for, 166, 277. failure to make is abandonment, 165, 166, 210, 267, 274. is matter in defeasance, 165. INDEX. 519 [References are to Pages.] ACTUAL APPLICATION TO I'SE (Continued). time for must be within ieasonal)le time, 165, 166. diligence required of irrigator, 210, 211, 212. five years a limit, 211. under irrigation codes, 213. of water held for future needs. See Future Needs; Irrigation, etc. actual use limits quantity allowed appropriator, 170, sec. 141. how quantity actually used is calculated, 205. at completion of work, must be apparent ability of, 165. bona fides of, 166. not an element of completion of work, 166. not a prerequisite to invoking doctrine of relation, 165, 166. under irrigation codes. See License; Method of Appropriating, etc. notice of, sometimes required, 174. form of notice of, 435, 437. form of proof of, 438, 440. examination of by State Engineer, 174. time for specified in some States, 213. formalities of, 273. ACTUAL DIVERSION. See Actual Application; Completion; Method of Appropriation, etc. title ripens into right only on, 163. whether necessary to completion of work, 160. to distant lands, 160, appropriation by. See Method of Appropriation. failure to comply with statute may result in. See Forfei- ture, failure to comply with statute not necessarily fatal, 151. mere diversion may give rise to, 141, 161. does not secure benefit of doctrine of relation, 140. where lack of diligence, 159. Civil Code of California does not apply, 140. statute of Montana does not apply, 142. requisites of, 141. priority in cases of, 161. date of right on, 161. determination of amount allowed on, 204. examples of entry on death of owner, 143. may result from parol sale, 143, 186, 266. use of works belonging to another, 160, 161. 520 INDEX. [References are to Pages.] ACTUAL DIVEESION (Continued). mere settlement on banks of stream is not per se, 143. location of placer claim is not per se, 143. taking up millsite is not per se, 143. law of, 188, 273, 279. ACEE-FOOT. unit of volume of water, 175. ADJUSTMENT OF EXISTING PEIORITIES UNDER lEEIGATION CODES. See, also, Administration; Quieting Title, etc. general principles of, c. XI. two methods in different States, 257. purely statutory, 257. statutory method is conclusive, 261. collateral attack on, 261. by board or State Engineer survey, maps, evidence, etc., 257, 258. notice of, 257. certificate of priority issued, 258. recording certificate, 258. form of certificate, 466. by decree of court under special proceedings: survey, maps, evidence, etc., 258, 259, 260. notice of hearing, 258, 253. pleadings, 260. in whose name suit is brought, 259. jurisdiction of court, 258. decree, 259. certificate of priority, 260. filing and recording of, 260. ADMISSION. into Union, of Wyoming, 63. ADMITTANCE. surrender and, 265. ADMINISTRATION UNDEE lEEIGATION CODES. See Adjudica- tion of Priorities; Irrigation Codes, etc. supervision of appropriators under, c. X. declarations concerning control of State, 251. use of water a public use, 251. significant features of, 251. centralization of, 251. supervision of State. boards of irrigation, 252. board of control, 252. rules and regulations for, 252. State Engineer, 253. INDEX. 521 [Eeferences are to Pages.] ADMINISTRATION UNDP^R IKHKiATlON (ODER (Pontinued). intermediate siihdivipions of State water or irrigation divisions, 2;'53. division superintendents, 253. general rules and regulations for water divisions, 253, primary subdivisions. water districts, 254. irrigation districts, 254. water commissioners, 2.14. rules and regulations for supcM-vision of water districts, 254. police regulations, keeping headgates, measuring devices, etc., 255. crimes, 255. obstructing work of officials is criminal, 255. statutes concerning, in Colorado, 336. Idaho, 339. Nebraska, 354. New Mexico, 361. Oklahoma, 367. South Dakota, 373. North Dakota, 363. Utah, 378. Wyoming, 407. ADVERSE USE. under void deed, 280. upper and lower claimants affected by, 280. use of surplus is not, 280. use below is not, 280. no adverse use by force or fraud, 280. amount of damage immaterial, 281. of percolating water, 281. priority on right acquired by, 278. and appropriation by actual diversion, 278. requisites for acquisition of right by, 279. posting of notice not necessary, 279. beneficial use necessary, 279. length of time for, 279. must be continuous, 279. must be hostile, 279. permission as affecting, 280. must be open, 281. must be chance to present, 281. must be uninterrupted, 282. verbal objection does not interrupt, 282. 522 INDEX. [References are to Pages.] ADVEKSE USE (Continued). payment of taxes and, 282. against United States, 282. distinguished from appropriation, 283. summary of law of, 283. whether must be peaceable, 283. difficulty of obtaining rights by, 284. against upper riparian owner, 303. use of surplus is not, against riparian owner, 303. of ditch, 197. of water, 197, 278. corporation may acquire right by, 278. against tenant as affecting landlord, 278. presumed grant on, 278. title and, 161, 278. pleading, 278, 283. AFFIDAVIT. Colorado form of, 231. AGRICULTURE. See Debris; Irrigation; Pollution, etc. protection of, against pollution by miners, 230, 236. and mining, under new rule of percolating water, 231. appropriation for, 188. See Purpose of Appropriation. early attempt to discriminate against, 31. patents for, in mining regions, 77, note. ALIENS. appropriation by, 91. ALLEGATIONS IN COMPLAINT. See Parties; Pleadings, etc. of damages, in actions at law, 83, 245, 248. is immaterial allegation, 248. proof of diversion of less than alleged no bar to recovery, 248. that appropriator is owner, 248. place of use, need not be alleged, 248. of appropriation not support judgment as riparian proprietor, 248. AMOUNT OF WATER. See Quantity. ANIMAL. seepage caused by luirrowing of, 203. ANTIQUITY. of irrigation, 58. APPLIANCES. used in diverting water immaterial, 184. injurious to fish, 250. APPLICATION FOR PERMIT UNDER IRRIGATION CODES. See Method of Appropriating Under Irrigation Codes. necessity for, sec. 112. INDEX. 523 [References are to Pages.] APPLICATION von PERMIT I'NDKIt IRPICATION CODES fCon- tiniied ) . must be made bot'ore befjinning work, 170. in Colorado, within sixty days after beginning, 170. contents of, 170. with whom filed, 170. returning to be corrected, 171. fixes maximum allowed appropriator, 204. date of, fixes priority, 174. indorsement of approval by State Engineer, 171. forms used in Idaho, to appropriate, 425. to transfer, 443. Nebraska, to appropriate, 449. form of plat accompanying, 454, 516. Nevada, to appropriate, 460. notice of application for publication, 462. North Dakota, to appropriate, 468. to enlarge, 474, Utah, to appropriate for power, 485. to appropriate for mining, 490. to appropriate for irrigation, 492. Wyoming, to appropriate, 500. to enlarge an appropriation, 503. to build reservoir, 507, 511. etc. See Forms. APPLICATION OF WATER TO BENEFICIAL USE. See Actual Application ; Purpose of Appropriation , etc. by riparian owner. See Riparian Rights. APPORTIONING WATER. See Adjustment of Priorities; Quieting Title, etc. for days or hours, among appropriators, 208, 246. must be impartial, 247. ])orcolating water, 299. liy time, among riparian owners, 298. in times of scarcity, 247. See Quantity of Water, under irrigation codes. See Preferences and Pro-rating; Adjust- ment of Priorities, etc. for weeks, days, etc., riparian right, 298, 299. APPROPRIATION. See Ai)propriatiou ; Common Law; Riparian Rights, etc. not apply to water in artificial watercourse, 196. allegation of, not support judgment as riparian owner, 248. appropriation use, and non-use are the tests of right, 220. aims of doctrine of, 209. 524 INDEX. [References are to Pages.] APPROPRIATION ( Continued ) . supreme court of United States, views upon, 21, for distant lands. See Place of Use. what can be appropriated. See Streams; Lakes; Underground Water, etc. universally in force in West, 48. aridity as test of value of doctrine, 30. arid States, attitude of. See Colorado Doctrine, not needed for right by adverse use, sec. 195. necessity for doctrine of, 56 et seq. State boundaries no barriers to, 117. cannot be initiated by trespass, 103, 106. distinguished from prescription, 108, 140. adverse use, 198, 283. riparian rights, 207, 223, 227, 234, 237, 248, 289, 303, 304. not the doctrine of the common law, 290. and common law. See Common Law. history of the doctrine: arose in California, c. I. early conditions in California, 1 et seq. arose out of pioneer conditions in California, 31 et seq. original precedent, 7. Irwin V. Phillips, 7, 11. silence and tacit assent of United States and State, 9, 97. at first rejected by California court, 6. early California policy, 10. difficulties of California court, 6, early California statutes indirectly influencing, 9. was judicial legislation, 13, 16. early argument that not applicable to irrigation, 31. contest between appropriation and common law at start, 11. attempt to blend the two into one, 12. nature of appropriation is a possessory right, 22, 153. is equivalent to taking possession of water, 139. a pioneer doctrine, 30. Federal Statutes of 1866 and 1870 the basis of. See Federal Statutes. local customs the basis of. ttee Customs of Miners. originally rested on presumption, 13, 15. does not sanction monopoly, 145. cannot be constructive 140. INDEX. 525 [Eeforences are to Pages.] APPROPRIATION ( Continued ) . characteristics of, 82 et seq., 208. equality to all pursuits. See Purpose of Ajipropriation. appropriation usufructuary, sec. 38. independent of ownership or possession of land, sec. 42. use on distant lands, 85. ownership of land as evidence against hona fide intent, 86. transfer to otlier lanriatini;, eti-. of new appropriation, 174, sees. 115, Isl. form of, 466, 498. issuance of, 174. 5»2 IlsT)EX. [References are to Pages.] CERTIFICATE UNDER IRRIGATION CODES (Continued), of completion of work. See Method of Appropriating, form of, 434. issuance of, 173. not final in some States, 174. usually final, 173. of existing priority: form ofj 466. filing and recording, 174, 258, 260. issuance of, 260. final, called license in some States, 174. numbered consecutively, 173, 174. CHANCE TO PREVENT. no adverse use unless, 281, CHANGE. of means of use. See Ditches; Means of Use, etc. of ditches, etc. See Ditches; Means of Use, etc. of place of use. See Place of Use. of point of diversion. See Place of Diversion, of purpose of use. See Purpose of Appropriation, or enlargement under irrigation codes. 170. changes in ditches, etc., sec. 134. no injury to others in making, 147. by prior appropriator, 71. in course of construction, 162. of plan, non-user from, 267. CHANNEL. See Bed and Banks; Watercourse, necessary to watercourse, 114. title to, is in United States or grantees of land, 84. dry all year, usually, 114. chance flow in, 114. need not be full all year around, 114. and water right, severance of, 84. use of by several appropriators, 84, no property in, sec. 40. as link in ditch line, 40. drainage of, 161. not a way of necessity for miners, 236. clearing out choked channel, 265. CHARACTER OF USE, See Purpose of Appropriation, immaterial, 220. CITIES. riparian rights of, 95. appropriations by, 94. as successors of Mexican pueblos, 4. sewage of, injunction against, 301. INDEX. 533 (References are to Pages.] CITIZENS. appropriation not limited to, 91. CIVIL CODE OF CALIFORNIA. See Californiji. CIVIL LAW. See Mexican Law. of percolating water, 228. in Arizona, 38. doctrine of, 8. CLAIMANTS. rival, principles governing, 141. neither of whom posted notice, 151. where no rival claimants, complete diversion enough, 141. use of word in Civil Code of California construed, 273. existing, form for uae by, in Nebraska, 454. in Nevada, 463. etc. See Forms. CLIMATE. arid. See Arid States. COAL MINING, debris from, 237. importance of water problem in, 231, note. CODES. irrigation codes. See Irrigation Codes, of California. See California, irrigation codes, States having, 39. COLLATERAL ATTACK. upon decree adjudicating priority, 261. upon confirmatory decree of irrigation district, 45. COLORADO. no riparian rights in, 56, 144. appropriation always existed in, 57. filing application to appropriate in, 170. change of point of diversion in, 260, 270. forms used in, 415. reservoir filing, 418. affidavit, 420. ditch filing, 417. title of, in map, 416. etc. See Forms, statutes of concerning riparian rights, 335. preferences and pro-rating, 335. administration, 336. determination of existing prior, 336. method of appropriation, 337. 534 INDEX. [Beferences are to Pages.] COLORADO (Continued), reservoirs, 338. measurement of water^ 338. COLORADO DOCTRINE. See Appropriation; California Doctrine; Common Law^ etc. States following, 38, 68. doctrine stated, 54, 55. distinguishing features of common law of riparian rights rejected under, 54, 55, 6". power of State to change common law, 62. whether riparian rights rest on local law, 65, note, appropriation sole law of waters under, 55. rights of appropriator derived from the State under, 55. waters declared property of State or public, 55, 60. United States or State under, sec. 25. comments on, 61, sec. 26. ratification of, by Congress, 63 et seq. dijBSculties attending, 32, 61, 63 et seq. constitutional limitations invoked, 64, 65. due process of law, 62. primary disposal of federal lands, 35, 62. strongest ground of support, 66. construction of federal statutes under, 63, 64, 66, 69. effect of statute in establishing, 38, 60. constitutional provisions influencing, 38, 60, 63. supreme court of United States and, 67. COMITY, 118. See Interstate Stream. COMMENCING DITCH. See Diligence. mere act of, 47. COMMERCE. water may be article of, 195. COMMON LAW. See Appropriation; Riparian Rights; California Doctrine; Colorado Doctrine, etc. why customs of miners departed therefrom, 5 et seq. rules of, 59, 288. See Riparian Rights, based on equality of right, 222. under (California Doctrine of wider application than appropriation, 36. California Civil Code and, 36. nine States enforcing, 37. suitability of, for West. not adapted to pioneer conditions of early California, 5. not adapted to conditions in arid States, 55, 57 et seq. irrigation codes and, 144. not in force in arid States, under Colorado view, 55, 58. INDEX. 635 [References are to Pages.] COMMON LAW (Continued). seven States and Territories rejecting, 37. by statute expressly, in Arizona only, 41. aridity as influencing, 30. contrasted with appropriation, lo, 82, 84, 182, 207, 222, 223, 234, 237, 289, 290. appropriation not doc-trine of, G, 11, 12, 35, 289, 290. attempt to blend the two into one, 10, 12, 13. intent of original precedent, 10. appropriation not deduced from rules of, 12. distinction between, 15, 160. appropriation in derogation of, 15. whether appropriation ever the law in England, 289. supplement each other under California doctrine, 13. See California Doctrine, are independent, 10, 12. attitude of California courts 305. place of motive in, 228. statute adopting in California, 6, 10, 13, 16. recent legislation hostile to, 40. See Irrigation Codes; Legisla- tion, etc. Arizona only statute expressly mentioning, 41. COMPLAINT. See Allegations; Pleading; Suit, etc. cross-complaint by appropriator in suit by riparian proprietor, 249. what must be separately stated in, 247. for loss of percolating water, 248. COMPLETION OF CONSTRUCTION WORK. See Construction Work; Method of Appropriating, etc. necessity for, 157, 163, sec. 103. what amounts to, sec. 104. always a requisite, 159. and appropriation by actual diversion, 159. the prime factor in making approjiriation, 159. completion defined, 159. reasonable time for removal of boulders, etc.^ 205. time for under irrigation codes: usually must be within five years, 172. proof of: necessity for proof of, 17!5. maps accompanying, 173. discretion of State Engineer in taking, 173. certificate of, usually final, 173, 174. not final in some States, 173. 536 INDEX. [References are to Pages.] COMPLETION OF CONSTRUCTION WORK (Continued), form for proof of, 431, 433, 434. for notice of, 428, 430. etc. See Forms. California code definition of, 159. actual diversion as part of, 160. completion without diversion, 160. necessity of time for, 162. actual use as element of, 166. of ditch, final, 47. is conducting waters to place of use, 159. between posting notice, and, use of water by others, 149. interval between commencement and completion, 73. suit for diversion before completion of work, 150. use of water by others before completion of work, 164. intervening use ceases ipso facto, 164. CONDEMNATION. See Eminent Domain. CONDITIONAL. appropriation is, 53, 189, sec. 45. conditioned on beneficial use, 89. conditional abandonment, 188. CONDITION SUBSEQUENT. relation does not act as, 163. actual application as, 166. CONFIRMATION OF APPROPRIATION. See Acquiescence; Fed- eral Statutes, etc. CONFIRMATORY ACT. See Irrigation Districts. CONFLICT OF LAWS, 118. See Interstate Streams. CONFLICT OVER RIPARIAN RIGHTS. See Appropriation; Com- mon Law; Riparian Rights. CONGRESS. See Act of Congress; Federal Statutes; Public Lands; United States, etc. recognized as valid the customary law, 25. policy of, 212. prohibited hydraulic mining in (Jalifornia, 237. CONSENT of landowner necessary to build ditch on private land, 193. of other appropriators removes objection to change of use, 216. of landowner to change of line of ditch, 200. of private landowner, to appropriation on his land, 10(5, sec. 60. CONSTITUTIONAL LAW. See Due Process of Law: Eminent Do- main, etc. provisions in State constitutions. declaring waters property of State, 38. cannot interfere with rights on interstate stream, 119, note. INDEX. 537 [Beferences are to Pages. J CONSTITUTIONAL LAW (Continued). recognizing law of appropriation, 57. rejecting common law of riparian rights, 63. in States following Colorado doctrine, 38. prohibition of monopolies not affect appropriation, 206. limitations on State legislative power, .54, 65. interference with primary disposal of Federal lands, 35. interfering with vested rights. See Due Process of Law. power of State or Territory to legislate on waters, 26 police power of State, 26. principles of, protect riparian rights of common law, 35, 62 et^ seq. constitutionality of Confirmatory Act, 44. See Irrigation Districts. of eminent domain statutes, 286. of irrigation codes, 41 et seq. CONSTRUCTION. of Federal statutes, 69. broad, in arid States, 64, 65, 66, 69. see Federal Statutes of California Civil Code. section 1411, 274. See Forfeiture. of word "claimants" in sections 1418 and 1419, 273. See Forfeiture. of section 1422. See California (Civil Code), of Wright Act. See Irrigation Districts, of contract: reserving "present rights," 211. for sale of water right, 83. of wording of notice of appropriation to be liberally construed, 149. of wording, 156. CONSTRUCTION WORK. See Actual Application; Completion of Work; Diligence, etc. hindering construction work, 73. protection of appropriator during, 145. right of suit before completion of, 150. use of water by others during, 151. use of water oneself during, 73, 151. use of existing ditches, 160. of abandoned works, 160. of works belonging to another, 161. changes in course of, 149. 162, sec. 106. time for beginning under Civil Code of California, 146. delay caused by magnitud»< of, 349. 538 INDEX. [References are to Pages.] CONSTRUCTIOX WORK ( Contiiuied ) . diligent prosecution of, L50, 151. See Diligence. completion of. See Completion of Work. CONSTRUCTIVE APPROPRIATION. not possible, 140. CONTINUOUS. adverse use must be, 279. CONTRACTS. See Conveyance; Sale, etc, in general, 178, 179, 203, 293. running with land, 179, 203. reserving present right, construed, 211. specific performance of parol, 183. not to be performed within year, 204. concerning ditches, sec. 139. concerning water rights, sec. 120. freedom of, concerning water rights, 178, 179. for water supply, 179. CONTROL, BOARD OF, 252. See Administration. CONVEYANCE. See Contracts; Deed; Sale, etc. of ditch, carrying water as appurtenance, 203. of ditch reserving water right, 203. parol, of ditch, 204. written, preserves priority, 180. must be written, 180. must be recorded, 180. in general, sec. 121. of land, reservation of riparian rights, on, 294. of land, carrying water right as appurtenance, 194. statute of frauds, applied to, 88. in general, sec. 121. parol. See Parol Sale. CORPORATIONS. See Appropriator. may appropriate, 67, 94, sec. 51. organized under territory, 95. irrigation districts public corporations, 44. and adverse use, 278. organized to sell water are in commerce, 195. application of, to appropriate, under irrigation codes, 171. CORPOREAL. water right is not, 89. CORPUS OF WATER. no property in, sec. 39. under irrigation codes, 61. ownership of, in law of percolating water, 295. no ownership of, 248. INDEX. 539 I References are to Pages.] CORRELATIVE RIGHTS. of landowners in percolating water, 230, 234. COTENANT. See Tenants in Common. suit by tenant in common against, 240. COUNT. See Pleading. COUNTY. suit in one, for diversion in another, 240. ditch in two, venue on suit, 194. COURSE OF STREAM. See Channel. natural changes in, 85, 304. COURTS. must solve difficult questions, 234, 264. difficulty met by, in establishing law of appropriation, 31. CRANDALL v. WOODS. early ease upholding riparian rights, 33. CRIMINAL LAW. See Police Regulations. poisoning water, 250. fouling water, 250. herding sheep into water, 250. stealing water, 250. injuring ditches, etc., 250. police regulations in irrigation codes, 250, 255. pollution dangerous to health, 235. equity, injunction against, 250. crimes as nuisance, 250. provisions in Nevada statutes, 357. provisions in Nebraska statutes, 351. in general, sec. 172. CROPS. See Irrigation. water needed for, by natural sub-irrigation, 226. CROSSING. where ditch crosses ditch, 201. CUBIC-FOOT. See Measurement of Water. unit of volume of water, 175. CUSTOMS OF MINERS. See Appropriation; California; Public Lands, etc. the basis of the law of appropriation, 145. origin and nature of. informal origin of, 4, 5. grew out of pioneer conditions in California, 4. rested on principle of first come first served, 4. applied to everything pertaining to mining, 3, 4 et seq. were open and notorious, 14. why departed from the common law, 4, 5. use of water by miners, 14 et seq. 540 INDEX. [References are to Pages.] CUSTOMS OF MIXERS (Continued). a comprehensive system, 24. governmental acquiescence in, 51, 53, 97. early California statute recognizing, 6, 24. at first were rejected by California court, 5, 6. California court and, 23. miners were on public domain, 14. tacit assent of United States, 24. original precedent adopting, 7, judicial notice of, SIS'. presumption of governmental sanction, 15. express sanction of United States by Acts of 1866 and 1870. See Federal Statutes. requisites of notice of appropriation under, 146, DAIEY. pollution of water by, 238, note. DAM. See Ditch; Negligence, etc. subsequent appropriator may maintain prior, 248, 249. removal of, mandatory injunction, 245. raising height of, 85, 215. preventing working of mining claim, 223. spreading out water unnecessarily, is waste, 190. prior appropriator must keep up, in favor of subsequent ap- propriatof, 249. damage by. See Negligence, for impounding mining debris. See Debris, sub-surface, 132. straightening out stream by, 160. building of, is taking possession of water, 163. DAMAGE. from breaking ditch, overflow, seepage, etc., 201, sec. 136. See Negligence. from vis major, 202. from melting snow flooding ditch, 202, in seasons of high water, 202. from unprecedented floods, 202. for injunction must be irreparable, 141. must be prospective, 142. necessity for money damage, 241, 243, 302. necessity for, under law of riparian rights, 301. joinder of count for, with one for damages, 247. measure of damages: allegation of damages, 83, 245, 248. INDEX. 54J [References are to Pages.] DAMAGE (Continupd). allegation of anionnt of, imniatorial, 248. uncertainty of, in percolating water, 129, 23.3. adverse use is irrespective of amount of, 281. DAMNUM ABSQUE INJURIA, 225, 239. injury to subsequent appropriator may be, 239. DATE. at which title accrues by relation, 141, 162. notice to fix, to which right relates back, 141. priority dates from filing application under irrigation codes, 174. certificates of appropriation numbered consecutively according to date of application, 174. DAYS. appropriation measured by months, days or parts of days, 73. apportioning water for, under law of riparian rights, 299. DEATH. transfer of water rights on, 143. DEBRIS, MINING. See Pollution, debris cases, 232, 238. from coal mining, 237. from gold mining, 215. overflow of stream carrying, 237. distance immaterial in deposit of, 237. discharge of into streams. See Tailings, a public nuisance. See Nuisance; Pollution, impounding dams for, 237. Pennsylvania rule of, 235. DECAY. of ditches evidence of abandonment, 267. DECISIONS. State statutes prevail over, 26. California code declaratory of, 26. DECLARATIONS. in notice as evidence, 148. against interest, 186. DECREE. See Adjustment of Priorities; Quieting Title, etc. adjudicating priority under irrigation codes, 260. time specified in, for actual application to use, 213. injunction, form of, 206. , adjusting rights, must be certain, 246. certificate of, under irrigation codes, sec. 184. DEDICATION. of rivers to public use. See Mexican Law. DEED. See Conveyance; Contract; Sale, etc. faulty, works as al.andonmont, 184, sec. 188. 542 INDEX. [References are to Pages.] DEED (Continued). void, adverse use under, 280. warranty, of land, does not necessarily warrant appropriation, 292. and delivery of possession completes sale, 180. transmits priority, 185. DEFENSE. necessity is not, to injunction, 243. DEFINITION OF. percolating water, 129, 133. sub-flow of stream, sec. 75. appropriation, sec. 47. usufructuary, sees. 38, 82. miner's inch, 72, 147, diligence, 158. completion of work, 159. farming neighborhood, 287. abandonment, 268. public nuisance, 238. DELfAY. See Actual Application; Construction Work; Diligence, etc. unreasonable, a question of fact, 267. laches, or, as bar to injunction, 242. caused by magnitude of work, 149. DEPOSITION. Form of for proof of completion of works, 431, 433. proof of application of water to use, 438, 440. DEPRESSIONS. in prairies not watercourses, 115. DETERIORATION. See Pollution. DEVELOPED WATER. See Percolating Water. recapture of, 265. works for in Southern California, 30, note, produced by tunnels, 131, in tunnel tapping streams. See Sub-flow of Stream. DIFFUSED WATER. surface water, 58, sec. 69. See Surface Water, cannot be appropriated, 120. underground. See Percolating Water. DIKES. See Dam. straightening out stream by, 160. DILIGENCE. See Actual Application; Completion; Construction Work; Future Needs, etc. defined, 158, INDEX. 543 fEcferences are to Pages.] DILIGENCE ( Continued ) . necessity for, 47, 150, 151, sec. lOo. under irrigation codes, 172. bond for, under irrigation codes, 172. a universal requisite to invoking doctrine of relation, 156. what constitutes, 157, sec. 101. a question of fact for jury, j.57. surveys, notices, stakes, blazing of trees, 157. unusual efforts not required, 157. commencing work within specified time, 156. evidence of lack of, 157. delay in construction work. See Construction vVork. interruptions of work, 156. difficulties of procuring labor and material, 157. prevention by rain, snow or sickness, 156. excusable delay, 157, 158. must be incident to the work and not the person, 158. in applying water to use. See Future Needs, climate as affecting, 157. nature of county as affecting, 157. in applying water to irrigation, 211, 212. See Future Needs, failure to use: as abandonment, 266. forfeits benefit of relation, 158, 266. may nevertheless give right by actual diversion, 159. See Actual Diversion. between rival claimants, 159. and doctrine of relation, 156. in keeping ditch in rep-^ir, 20.3. See Damage. DIMINUTION. See Quantity of Water, under law of riparian rights, sec. 223. DISCHARGED WASTE. See Waste. as abandonment, sec. 194. DISCRETION. of board of supervisors in organizing reclamation district, 123. in organizing irrigation districts, 45. of State Engineer. See State Engineer. DISCRIMINATION. none as to who can :i|iiir(iiuiato. See .Appropriator. none as to pursuits. See Purpose of Appropriation. DISTANT Lands. See Place of Use. appropriation for, 22, 23, 85, 215. under law of riparian rights. See Riparian Land. 544 INDEX. [References are to Pages.] DISTANT LANDS ( Continued ) . appropriation of percolating water for use on, 153, 227. use on, of percolating water, under landowner's right, 295 appropriation usually for use on, 160. DISTINCTION. between appropriation and riparian right, 8, 182, 303, 304, sec. 230. and adverse use, 283. and prescription, 108. between water right, and ditch, 130, 194, 263, sec. 43. and water in artificial watercourse, 197, 271. between abandonment and forfeiture, 273. between change of place of use and change of purpose of use, 218, 219. between government as landowner and as lawmaker, 50. between compliance with statute and appropriation by actual di- version, sec. 84. DITCH. See Artificial Watercourse; Construction Work; Dam, etc. to mouth of spring, 130. evaporation or seepage from, 191, 200, 205. completion of, 47, 205. See Completion of Work, diligence in building. See Diligence. capacity of limits quantity of water allowed, 205, sec. 140. stream as link in ditch line, 264. See Recapture, prior right to rush tailings in, 238. contracts concerning, 203. by mistake built on land of another, 189. subject to mechanics' liens, execution, mortgage, 194, 204. built in two parts, 194. nature of right to ditch an easement, 87, 200, 216, sec. 129. an artificial watercourse, 191. real estate, 191. essence of, is right of way, 192. not land, 162, 192. distinguished from water right, 193, 194, 263, sees. 43, 130. water flowing in ditch is personalty, 195. acquisition of right to ditch on public land is by grant from government, 192, 199. remains when land becomes private, 192. by prescription, 193. cannot be built on private land without landowner's con- sent, 18, 189, 193. INDEX. 545 [References are to Pages.] DITCH (Continued), drainage ditch is not an appropriation, 154. water in, is abandoned, 270. water from mine collected in, 197. change of ditch. See Moans of Use; Place of Use. in general, 199, 200. by consent of landowner, 199, 200. building branches of, 216. cannot be changed to pipe-line, 199, 200, 243. from flume to ditch, 199. cannot be forced upon ditch owner by landowner, 200. injury to ditch: to part, is injury to whole, 240. to ditch built in two parts, 194. to ditch lying in two counties or States, 194, 240. from various causes: sawdust clogging ditch, 223. mud and silt, 235. removal of support by landowner, 201. ordinary use of land by landowner, 201. trampling by sheep, 201. ejectment for, 192. injunction against, 243. count for, cannot prove diversion of water under, 193. repair of ditch, 74, sec. 135. duty of, is on ditch owner, 201, 203, 216. ditch owner has right of entry for, 201, 216. where ditch crosses ditch, 201. damage from break, etc., of, sec. 136. See Damage; Negligence, etc. negligence not presumed, 202. negligence must be shown, 202, sec. 136. duty of ditch owner that of prudent business man, 203. use of waste from ditch, 217, 270. See "Waste. ditch to catch waste; estoppel, 196, 271. emptying into natural stream, 218. ceasing abandonment of waste from, 271. sale of ditch: written evidence of transfer, 185. appurtenance, 179, 182, 194. reserving water right, 194. does not necessarily include right to take water, 193. by parol, 204. Water Rights— 35 546 . INDEX. [Eefeiences are to Pages.] DITCH (Continued). loss of right to ditch by adverse use, 197. abandonment of, 263. use of abandoned ditch by others, 160. gives no right to build another in different place, 200. not necessarily abandonment of water right, 189, 194, 263, 275. of water from. See Waste, form for ditch filing in Colorado, 417. See Forms. DIVEESION. See Actual Diversion, damages in action for, 246. where ditch lies in two counties or States, 94, 194. from well, 225. point of. See Place of Diversion. at common law. See Riparian Eights, injunction against. See Injunction, of percolating water. See Percolating Water, specific finding necessary, 233, motive as element in, 225, 227, 228. by tunnels, 130, 230, note, 226. in ordinary use of land, 227. under old rule, not wrongful, 134. mere diversion, see. 105. necessity of beneficial use and purpose, 48, 151. appropriation by, 84, 140. See Actual Diversion, by others between notice of appropriation and completion of work, 164. DOG IN THE MANGER. not sanctioned by appropriation, 145. DOMESTIC USE. See Purpose of Appropriation; Riparian Rights, appropriation for, 47, 75, 208. preference to under irrigation codes, 208. under law of riparian rights, 296. DRAINAGE. See Waste. ditch for, water in is abandoned, 154, 270. of percolating water, 233, 227. of springs, by mine works, 227. and flooding, 224. of mines, example of, 231, note. of river system by mines, 231. of swamp lands, reclamation districts, for, 122. surface drainage, 115. diversion for, not an approiniation, li)4, 161. INDEX. 547 [References are to Pages.] DRY CHANNEL. See Watercourse. as watercourse, 114. DUE PROCESS OF LAW. See Constitutional Law. protects riparian proprietor, 35. in issuance of bonds of irrigation district, 45. protects appropriation once made, 50. EASEMENT. riparian rights not an, 292. ditch, etc., is, 199, 200, 216, sec. 129. appropriation spoken of as, 53. EJECTMENT. See Suit. whether lies for ditch, 192. from premises, 249. EMINENT DOMAIN. See Constitutional Law. not involved under, sec. 2339, Rev. Stats., 21, note, constitutionality of statutes concerning, 286. irrigation districts may exercise right of, 44. what is a public use of water, 285, 286. irrigation is, 286. water for farming neighborhoods, 286. public water supply is, 287. mining is not in California, 287. what can be taken on: rights of appropriation may be taken, sec. 206. riparian rights may be taken, sec. 206. underground water, 132, 287. ENGLAND. attempt to apply appropriation. 82, note, 289. ENLARGEMENT OF APPROPRIATION, for future use, 211. See Future Needs, where no other claimants, sec. 143. form for permit to make, under irrigation codes. See Applica- tion for Permit. ENTRY. in land office, riparian rights as affected by, 80. EQUALITY. common law of riparian rights based on, 222. pursuits in appropriating, 18, 22. See Purpose of Appropriation. EQUITY. See Injunction; Quieting Title, etc. jurisdiction of to restrain crimes as nuisances, 250. specific performance of parol contract, 183. estoppel in, 196, 285. equitable title, 183. 518 INDEX. [Eeference5 are to Pages.] ESTOPPEL. in equity, 196. as defense at law, 285. forfeiture of water riglit by, 197, 284. some degree of turpitude necessary, 196. prescription and, concerning artificial waters, 196. right by, to discharge from ditch, 271. what not sufficient to raise, 196. mere silence does not raise, 204, 285. of upper riparian owner, 303. EVAPORATION. loss by, 190, 191. and seepage from ditch as waste, 191. EVIDENCE. parol, to show sale of water right, 185, 187. written, of transfer of water right, 185. gathered by division engineer under irrigation codes, 258. in eases of recapture, 264. taken in adjudicating priorities under irrigation codes, 260. of non-user, 267. of appropriation, 157. of sub-flow of stream, 126. of customs of miners. See Customs of Miners. of intention of appropriator, see. 98. of abandonment, 263. parol sale is, 187. evidence rebutting abandonment, 268. EXAMINATION BY STATE ENGINEER. of application for permit. See Application for Permit. of actual use of water. See Actual Application, EXCLUSIVE. right of appropriation is, 222, sec. 41. contrasted in this rospeot with common law, 84. EXCUSE. good motive as in diverting percolating water, 228. legitimate mining as, in diverting percolating water, 230. necessity is not. See Necessity. EXECUTION. sale of water right on, 180. EXERCISE OF RIGHT. See Means of Use; Quantity of Water, etc. EXPRESS GRANT. See Grant. appropriator holds right under, sec. 53. EXTENT OF RIGHT. See Exercise of Right. INDEX. 549 [Eeferences are to Pages.] FAILURE. to post notice, sec. 93. of diligence, 189, sec. 1U2. to comply with statute. See i"'orfeiture. FARM. and garden, 1106. farming neighborliooils, -H6. FAULTY DEED. See Parol Sale. grantee on, is appropriator by actual diversion, 184. as abandonment, 265. FEDERAL QUESTION, 241. FEDERAL STATUTP'S. See Public Lands; Uniteil States, etc. sanctioned local customs laws and decisions, 21. purpose of— to prevent loss of possessory rights on sale of public lands, 21. lack of care in early Federal statutes, 69. granted right of way over public lands, 20. protected settlers from injury, 20. construction of statutes 1866 and 1870 (Rev. Stats. 2339, 2340) oo, 63 et seq. under Colorado doctrine, 64, 66, 69. by supreme court of United States, 21, 67. before 1866, 23. of 1866 and 1870, construction of, siii)ra. did not establish a new right, 25. are basis of law of appropriation, 25. obscure wording of, 20. gave sanction to existing system, 20, 24. history of, 11. comments on, 19, sec. 11. references to miscellaneous, 310. arid land acts, 310. Carey Act, 310. in full: statutes of 1866 and 1870 (Rev. Stats. 2339, 2340), 19, 309. National Irrigation Act, 311. FEES OF STATE ENGINEER. Idaho, 345. Nebraska, 351. North Dakota, 365. Oregon, 371. Utah, 383. See individual Stiitcs. 550 INDEX. rEcfe:e::c3- fro to Pages.] FINDING Oi^' COUKT. concerning percolating water, must be specific, 233. quieting title must be specific, 24-6. FIE ST COME FIRST SERVED. as basis of law of appropriation, i. FISH. appliances injurious to, 250. riparian owner's right to, 293. appropriation for stranding fish, 154. FIVE YEARS. See Adverse Use; Forfeiture. non-user for, as causing forfeiture, 269, 273, 274, 276. FLOODING. See Drainage. of mining claim, 215. FLOODS. See Damage; Drainage; Surface Water. that may be anticipated, 202. unprecedented, 202. periodical, 202. FLOUR-MILL. appropriation for, 7#. FLOW OF STREAM. no presumption of, 114. tendency to, necessary to watercourse, 114. continual, unnecessary to watercourse, 115. chance flow in usually dry channel, 114. right to natural flow, 217. irregularity of, 224. stoppage of, from natural causes, 267. FLUMES. See Ditches. FORCE. or fraud, no adverse use by, 280. use of, in protecting water right. See Physical Force. FORECL"0SURE. of mechanic's lien built in two parts, 194. FORFEITTTRE. See Abandonment; Nonuser. distinguished from abandonment, 269, 273, 275. nature of forfeiture: acts in iuvitiimj 269, 275. intent not to abandon immaterial, 269, 276. ground for forfeiture: failure to comply with statute in making appropriation, 141, sec. 192 et seq. See Actual Diversion; Diligence; Notice, etc. benefit of doctrine of relation lost, 16S, 266. appro])ri;itor by actual diversion not affected by, 273. INDEX. 551 [References are to Pages.] FORFEITURE ( Continued ) . Civil Code nf C.ilifonii i, 1419. as CMii^in? forfeiture, 273. from noniiser: adoption of rule, 270, 274. for five years, 269, 270, 273, 274, 27.5, 276. Civil Code of California, 1411, as creating, 274. as affecting future needs in irrigation, 277. under irrigation codes, 276. time limit of non-user under irrigation codes, 277. not result from mere silence, 286. of benefit of doctrine of relation, 168, 266. under irrigation codes, 276. by estoppel, 197. of priority, change of use does not result in. 190. of land as affecting appropriation: appropriation on forfeited land, 99, 106. forfeited railway grant. 99. mining location, 99. FORMS. notice of appropriation. 413, sec. 90. California: notice of appropriation, 413, sec. 90. Colorado, 415. for title of map, 416. for ditch filing, 417. reservoir filing, 418. affidavit, 420. Idaho, 42.5. application for permit to appropriate, 425. notice of proof of completion of work, 428. same for publication, 430. proof of completion, deposition of holder, 431. same — deposition of witness, 433. certificate of completion of work, 434. notice of application to use, 435. same — for publication, 437. proof of application to use— deposition of holder, 438. same — deposition of witness, water license (final certificate), 441. application for transfer of water right, 443. same — notice for publication, 447. Nebraska, 449. ajiplication for ]>ermit to ajipropriate, 449. plat accomjianving same, 454, 516. 652 INDEX. [References are to Pages.] FORMS (Continued). claim of existing owner, 454. plat accompanying same, 516. Nevada, 460. application for permit to appropriate, 460. same — notice for publication, 462. approval of State Engineer, 462. claim of existing owner, 463. certificate of appropriation for existing owners, 466. plat accompanying application, 515. North Dakota: , application for permit to appropriate, 468. application for permit to enlarge, 474. notice of application — for publication, 480. proof of publication, 480. maps, 480. Utah : * application for permit to appropriate, for power, 485. for mining, 490. for irrigation, 495. proof of appropriation, 495. certificate of appropriation, 498. Wyoming, 500. application for permit, to appropriate, 500. to enlarge, 503. to build reservoir and divert water, 507. to build reservoir and store water, 511. forms of plats, 515, 517. TRANCHISE. water right spoken of as, 89. FRAUD. no adverse use by force or, 280. FRAUDS. See Statute of Frauds. FRESHETS, 115. FRONTAGE ON STREAM. See Riparian Kights. not sole measure of riparian right, 297. FURROWING LAND. failure to, before irrigating, not waste, 191. FUTURE NEEDS. See Actual Application; Quantity of Water." appropriation for future improvement and extended irrigation of land, 47. history of irrigation in Idaho, 212. irrigation by poor men, 212. INDEX. 553 [Beferences are to Pages.] FUTURE NEEDS (Continued). purpose of public land laws of Congress, 212. appropriations by settlers before lanropriation, 206. 572 INDEX. [References are to Pages.] MONTANA. statutes of, 347. State lands in, 98. method of appropriating, 138. appropriation by actual diversion in, 142. the common law of riparian rights in, 29, 37, 118. MONTH. appropriation measured by months, days, or parts of days, 73. MOETGAGE. ditch and water right su"b3ect to, 204. MOTIVE. See Intention. in making appropriation, see. 97. malice immaterial in making an appropriation, 155. as affecting injunction, 233. materiality of, in diversion of percolating water, 228, 230, 233, sec. 159. MUNICIPAL COEPORATIONS. appropriation by, 95. supplying water to, is a public use, 94, 316. NATIONAL IRRIGATION ACT. does not directly affect law of waters, 43. effect of, 43. subordinate to State law, 43. in full, 311. NATURAL. natural water, law of not applied to artificial watercourse, sec. 132. natural causes, loss of riparian right by, 304. natural deficiency, who bears logs in time of, 207. See Quantity. NATURAL FLOW. artificial flow substituted for, 84. right to, 217. NATURAL RIGHT. riparian right is, 292. NATURAL USES. under law of riparian rights, 296, sec. 216. use for irrigation is subordinate to, sec. 216. riparian proprietor may take whole stream for, 296. NATURE OF. appropriation, 178, c. II. riparian rights, 292, sec. 119. NAVIGABLE STREAMS. See Streams; Rivers; Watercourses. appropriation of, sec. 66. title to bed of, is in State, 116. INDEX. 573 [References are to Pages.] NAVIGABLE STREAMS (Contimu»d). nature of rights in, 116. dam in, 116. ohHtriiction of, by mining dohris, 236, 238. easement of public in, 116. NEBRASKA. arraignment of law of appropriation in, 30. upheld riparian rights in spite of irrigation statute, 42, 34S statutes of, 348. declaration of State ownership, 348. concerning riparian rights, 348. concerning preferences and pro-rating, 349. concerning administration, 349. determining existing priorities, 349. method of appropriating, 350. measurement of water, 351. fees, 351. crimes, 351. forms used in. See Forms. application to appropriate, 449. claim of existing owner, 454. plat accompanying application, 454, 516, etc. NECESSITY. no defense to trespasser, 244. no defense to injunction, 243. channel as way of, for mine tailings, 236. NEGLIGENCE. See Damage; Diligence, etc. damage from breaking ditches, sec. 136. appropriator not an insurer, 201. damage from breaking overflow seepage or escape of water, 201, reservoir not built at appro])riator 's peril, 202. must be shown to hold ditcli owner liable for break or over- flow, 202. breaking ditdi not /'•*.• iiis; fivors miners against agricul- turists, 235. channel as a natural outlet for discliarge of tailings by miners, 236, channel not a way of necessity for miners. 236. injunctions against pollution. 236. See Injunction. protection of agriculturists against, by mining. 236. by sluice mining enjoined, 236. injunction against, by hydraulic mining, 236. materiality of injury by, 236, note, depositing tailings in streams, 236, note, protection of prior ai)propriator against tailings, 236, note, tailings not a nuisance jxr «', 236. note. dependence of mining on use of streams for tailings, 236, note. 586 INDEX. [Beferences are to Pages.] POLLUTION OF WATER (Continued), debris from coal mininj^', 237. overflow of a stream carrying debris, 237. distance immaterial m deposit of debris, 237. hydraulic mining prohibited by Congress in California, 237. scope of Caminetti act, 237. priority in pollution of water, sec. 164. right of prior appropriator to, pollute water, sec. 164. and subsequent appropriator, 237. appropriation and common law of riparian rights, con- trasted, 237. prior location of land for depositing tailings, 238. priority sanctioning rushing tailings across land in a ditch, 238. priority on public land, 238. doubt as to priority sanctioning, 238. debris cases, 238. priority or prescription not sanction public nuisance, 238. pollution held to be a public nuisance, 238. public nuisance defined, 238. priority may sanction pollution, 2ci9. injury to subsequent appropriator by prior, is (laninum absque htjuria, 239. pollution of underground waters, 239, note, pollution under riparian rights, 301. of interstate stream, 119. PONDS. See Lakes. lakes and ponds, sec. 70. POROUS GROUND. as underground reservoir, 132. POSSESSION. See Possessory Rights. of land not needed for appropriation, 8.5, 139. appropriation the equivalent of taking, of water, 139, 162, 163. naked, of land, gives no right to water, 81. without title, 34, 81, 187, 188. requisites of, as to water, 163, of water building dam is taking, 163. ejectment from, 249. deed and, completes sale, 180. POSSESSORY ACT, 16. POSSESSORY RIGHTS. See Customs of Miners, water right of appropriation is a, 22, 88, 139, 153. Federal Statutes sanctioned system of, 21. as grants from the government, 15. INDEX. 587 fReferences are to Pages.] POSSESSORY RKJHTS (Continued). possessory act of ('alifornia, IS. a compreliensive system, 24. as tenancies at will in early days, 8. nature of, 183, 265. supreme court of United States and, 184. statute of frauds and, 184. POWER. See Machinery. use of water for, interfered with by mine tailings, 238. change of use from, to irrigation, 219. PRAIRIES. depressions in, are not watercourses, 115. PRE-EMPTION. See Patent; Settler; Public Lands. PREFERENCES. See Apportioning; Quantity, etc. pro-rating under irrigation codes in times of scarcity, 207 none in apportioning in California, 247. to mining in mining districts — in Idaho, 209. Colorado statutes concerning, and pro-rating, 335. Idaho constitution for, and pro-rating, 344. Utah statute for, and pro-rating, 382. Nebraska statutes concerning, and pro-rating, 349. to domestic use and irrigation under irrigation codes, 208, sec. 144. PRESCRIPTION. See Aaverse Use. estoppel or, to discharge from artificial watercourse, 196, 197, 271, estoppel or. below against upper riparian owner, 303. rights to irrigation by, 198. right to ditch by, 193. right of, 275. or priority not sanction pollution, 238. estoppel or, to waste, 271. act which would ripen into, is irreparable, 241. appropriation not based on, 140, sec. 58. a])propriation distinguished from, 108. against United States. 108, 140. rights acquired by. See Adverse I'se. PRESSURE. measurement of water in California under four-inoh, 147. PRESTTMPTION. See Burden of Proof. against existence of underground stream, 124. that lands are public, 98. sec. 5.1. of continuance of flow of water, li4. of grant from United States in early days, 53. is basis of law df appropriation, 13, 15. of license to approi)riate. 588 INDEX. [Beferences are to Pages.] PRESUMPTIOX (Continued). of negligence from break of ditch, 202. of abandonment, 269. of grant on adverse use, 278. PREVENTION. by rain or snow, 156. See Diligence. PRIMARY DISPOSAL. of Federal lands, as affecting appropriation, 35, 62, 67. PRIMARY SUBDIVISIONS. administrative, under irrigation codes, sec, 176. See Adminis- tration. PRIOR. prior appropriator. See Appropriator. prior settler. See Settler. PRIORITY. See Adjustment of Priority; Appropriator, etc. parol sale, causes loss of, 184, 188, 266. sale in writing transmits, 180, 184, 185. how computed, 168. between appropriators, sec. 28. governs their rights, 70, 75. certificate of. See Adjustment of Priorities Under Irrigation Codes, dates from posting of notice or filing application for permit. See Method of Appropriation; Relation, between settlers and appropriators, 34, 71. prior settlers before patent, 36. prior settlers have better right under California doctrine, 79. jurisdiction of court to determine, 258. determination and adjudication of. See Adjustment of Priority; Quieting Title, etc. effect of priority whether sanctions pollution of waters, sees. 164, 238, 239. gives right to rush tailings in ditch over land, 238, loss of priority, 216, 219, 220. change of place of use or diversion does not cause, 190, 216. by parol sale, 180, 184, 185. change of use does not cause, 190, 216. in claims to percolating water, 151. in appropriation of sub-flow of stream priority governs, 127. on right by adverse use, 278. PRIVATE LAND. ditch on, without consent of landowner, 193. burden of ditch remains when j>ublic land becomes, 192, growth of, in California, sec. 13. ill early cases no claim of private title to land, 7. INDEX. 689 [References are to Pages.] PRIVATE LAND (Continued). appropriation on. See Place of Diversion, with consent of landowner, 106, sec. 60. by landowner himself, 111, sec. 60. hostile to landowner, see. 59. strangers to landowner cannot raise question, 106, 169, 240. PRIVILEGE. appropriation spoken of as a, 88, 89. PROCEDURE. See Pleading. in determining existing priorities under irrigation codes, sees. 180, 183. PROOF. form of notice of, to use, 437. of completion of work, maps, 173, form of making, of completion of work, 495. Idaho form of notice of, of completion of work, 428. of sale of water right by oral evidence, 185. Utah form of, of appropriation, 495. publication of, 173. PROPERTY. See Personal Property; Real Property, in channel, sec. 40. in corpus of water, sec. 39. in waters by State, under constitutions, 55. in waters, United States as riparian owner, 68. PRO-RATING. See Preferences. under irrigation codes, sec. 144. PROSECUTION OF WORK. See Method of Appropriating Under Irrigation Codes; Construction Work, etc. bond for, 172. must be diligent, 47, sec. 114. See Diligence. PROTECTION OF THE RIGHT, c. IX. materiality of in.jury is the test, sec. 153. appropriation and the common law contrasted, 222. equality of right under common law, 222. aqua currit, etc., 222. reasonable use under riparian rights, 222. exclusiveness of right of appropriation. 222. test of injury to appropriator, 222. what diminution of quantity or deterioration in quality is an invasion of the right, 222. right of prior appropriator to complain, 222. later grants of land subject to prior appropriations, sec. 154. of riparian proprietors, by constitutions, 35. general rules of, of riparian rights, sec. 222. during construction work, 145. of subsequent appropriator, 71. 590 INDEX. [References are to Pages.] PUBLIC. ; waters declared property of, 60. policy, underground water, and, 135. service, canal companies are in, 94. use. See Eminent Domain, nuisance. See Nuisance, land. See Public Land. PUBLICATION. See Notice, Idaho form of notice for, for completion, 430. of notice of application, 171. Idaho form of notice, for transfer of water right, 447. of proof, 173. North Dakota form for, of notice to appropriate, 480. North Dakota form of proof of, 480. of notice of application to use, 437. PUBLIC LANDS. See Appropriation; Customs of Miners; Settlers, etc. in early days were mostly mineral lands, 9. * possessory rights on, 88, 183, 265. unrestrained occupation, 8, 24. tacit acquiescence of government. See Appropriation, etc. as tenancies at will, 8. statute of frauds on transfer of, 184. first appropriations were all on, 7, sec. 52. rights of United States to, as affecting appropriation of water: nature of title of United States to lands, 50. State cannot interfere with primary disposal of water on, 35, 62, 67. power of United States to deal with waters on, 52. United States as riparian proprietor because of, 35, 50, 51, 52. policy of United States as shown by arid land grants, 64. policy of land laws of Congress, 212. rights of private persons on. See Settlers, patents to private persons, 80. settlers may have riparian rights under California doctrine. See California Doctrine, naked possession gives no riparian rights, 81. appropriation by squatter, 187. injury to settlers on, 20. priority the governing rule, 238. later grants all subject to prior appropriations: mining grants, 76. INDEX. - 591 [Eeferenccs are to Pages.] PUBLIC LANDS (Continued), railway grants, 7(5. hoinoHtead, 76. ^ forfeited lands, approi)riati()n thereon, 106. See Forfeiture, ownership of, 49. no presumption that lauds are public, 98, sec. 55. are mostly Federal lands, 21. State lands, sec. 54. State and United States with respect to, 8, c. II. PUBLIC T^ISE. See Eminent Domain, mining not, in California, 287. irrigation is, 286. taking water for a public water supply is, 287. public use, 285. use of water a, 251. PUEBLOS. Mexican, water right of, 95. Los Angeles as successor of, 4, 95. water held by, in trust for neighborhood, 3. PUMPS. water raised by, from mine, property in, 197, 198. use of, by riparian owner, 300. use of, 189. PURCHASE. of riparian land by appropriator, 93, 94. PURPOSE OF APPROPRIATION. means used and purpose indicate amount appropriated, 204. must be stated in notice of appropriation, 147. must be beneficial, 47, 48, 53, 74, 89, ,96, 141, 153, 161, 189, 190. waste not sanctioned. See Waste, failure to apply water to, 267. See Abandonment; Actual Application; Nonuser. for future use. See Future Needs, a condition on appropriation, 53. what is a proper purpose, sees. 96, 148. character of use immaterial, 220. all pursuits allowed, 31, 155, 170, 220. early preference to mining, 16. no preference to mining to-day, 10, 17, 18. no partiality aside from irrigation codes, 10, 17, 18, 22, 31, 47, 91, 155, 170, 220, sec. 32. preferences under irrigation codes. 75. 208. See Preferences, to domestic use, 75, 208. to irrigation, 75, 208. to mining in Idaho, 20S. 592. INDEX. [Refeirences are to Pages.] PURPOSE OF APPROPRIATION (Continued), examples of benefic-ial ])urpose, 154. agi^lcultural purposes, 188. commercial purposes, tunnel collecting percolating water for, 229, note. future use. See Future N-j-^ds. mining, c. I. irrigation, 17, 18, 25, 46, 47, 154. domestic use, 47, 75, 208. for sale of water, 7, 155, sawmill, 9, 17. watering stock, 47. stranding fish, 154. use by Indians, 154. examples of what is not a beneficial purpose: waste, 153. drainage ditch, 154, 161. speculation or monopoly, 155, 163. cutting grass produced by overflow, 154. change of purpose: limitation on, that no one is injured by the change, 219, sec. 148. distinction between change of purpose and change of place of use, 218, 219. early view concerning, 218. priority not lost on, 219, 220. on sale of water right, purchaser using water for new pur- pose, 219. examples of changes, 154. sawmill to grist-mill, 219. placer mining to quartz mining, 219. power to irrigation, 219. quartz mining to motive power, 220. QUALITY. See Pollution. QUANTITY OF WATER. limitations on, 210, sec. 138. considerations governing, 204, no more than originally claimed, sec. 139, determination of, before California code, 204. means and purpose indicate, 190, 204. determination of, appropriator by actual diversion, 204. notice or application for permit fixes maximum, 204, no more than capacity of ditch, sec. 140. capacity of ditch of less than amount claimed is limit, 205. INDEX. 593 [References are to Pages.] QUANTITY OF .WATER (Continued). reasonable time after coniiiletion of iliteh for removal of boulders and other obstructions, 205. measurement of capacity nf ditfh, 205. beneficial use limits, 190, sec. 141. if less is used than diverted, right limited to amount di- verted, 205. how actually used is calculated, 205. amount lost in necessarv fluming added to, 205. pipedine, 306. watering garden patch cannot be found claim to irrigate farm, 20fi. injunction decree must be based on beneficial use, 206. surplus over beneficial use not included in appropriation, 161. quantity for future needs in irrigation. See Future Needs, in times of scarcity prior appropriator supplied in full, 207. subsequent appropriators bear loss, 207. appropriation and riparian rights contrasted, 207. apportioning among riparian proprietors in times of scarc- ity, 207. streams drying up in summer, 207. irrigation in dry season, 207. ])rior appropriator supplied in full, 207. apportioning water by time, 20'8. appropriation of whole stream, sec. 142. in times of scarcity under irrigation codes: preference to domestic use, 208. preference to irrigation, 208. preference to mining in mining districts— in Idaho, 209. special provisions for times of scarcity, irrigation codes, 207, 208. See, also, Preferences and Pro-rating, under common law of riparian rights what is reasonable quantity, a question of fact. 297. reasonable quantity for artificial uses, 297. for irrigation, 298. difficulty in determining quantity to be recaptured, 264. enlargement of amount, 209. amount for irrigation, 46, 211. limitation on, of water for irrigation under irrigation codes, .332. See Irrigation; Maximum, what diminution of, or deterioration in quality is an invasion of the right. 222. Water Rights— 38 594 INDEX. [References are to Pages.] QUANTITY OF WATER (Continued). summary of rules concerning, to which appropriator is entitled, sec. 147. apportioning during irrigating season, 206. rights of first appropriators, 206. in suit between many claimants, quantity for each must be specifically found by the court, 246. notice of appropriation places limit on, 148. sale of water right does not mean delivery of any specific, 83. QUARTZ MINING. See Mining. change of use from placer to, 219. QUESTIONS OF FACT. what is an unreasonable delay is a, 267. abandonment is, for jury, 263, 268. appurtenance is, 181. abandonment is voluntary, and a, 263. what constitutes riparian land, is a, 299. reasonable quantity for riparian use, is, 297. diligence is, 157. QUIETING TITLE. See Adjustment of Priorities; Apportioning. actions to, to water right, sec. 169. to underground water, 245. right of landowner to underground water though he has sunk no well, 246. of many claimants on stream, 246. to determine rights on stream, all claimants must be in court, 246. court must make for each specific finding of amount, 246. irrigation a prolific source of litigation, 246. California decree adjusting rights, must be certain, 246. apportionment by time, between appropriators, 246. apportioning for days or hours among appropriators. 246. apportionment in times of scarcity, 247. no preference in apportioning, 247. on interstate stream, 119. QUI PRIOR EST IN TEMPORE, etc. maxim governing appropriation, 10, 12, 70, 80. RAIN— RAIN WATERS. See Surface Water. law of, 115, 129. heavy rains, 72, note. prevention of work by, 156. RAILWAY GRANTS. appropriation on forfeited, 99. riparian rights of, 78. subject to prior appropriations, 76. INDEX. 595 [References are to Pages.] RATIFICATION. of Wyoininj^ l;i\v 1/V ( 'oiijiross, (53. RAVIN K. as arti(ifi;il watcn'tmrsc, s''<'. l-'^. as link in t^ lOnuineer. 17 L of certificate of app"o])r: ti >■ , 171. 596 INDEX. [References are to Pages.] RECORDINC; ( Continued ) . of certificate of priority, 258, 260. of water license, 174. EECOVEEY. See Measure of Damages. REFEREE. See Adjudication of Priorities. REFUSE. See Crimes; Pollution. from hotel, 239. REGULATIONS. See Administration. rules and, for supervision of State, 2.'52. rules and, for supervision of water districts under irrigation codes, 254. police, under irrigation codes, sec. 177. RELATION, DOCTRINE OF. doctrine stated, 116, 167. origin and purpose of doctrine, 106, 140, 145, 152, sec. 107. based on early customs, 145. pioneer case, 162. preserved by legislation: Civil Code of California, section 1418, 164. irrigation codes, 165, 174. scope of doctrine: to prevent "dog in manger," speculation, etc., 145. to fix date and details when right ripens, 140, 141, sec. 88. protects bona fide appropriator during construction work, 145. operation of doctrine, 152, 169, sec. 108. See Method of Ap- propriating. right on completion relates back to beginning, 150. when doctrine can be invoked, 163, 166. acts as a kind of option, 163. not act as a condition subsequent, 163. four requisites to invoking stated, 145, 146, sec. 88. actual application of water to use not a requisite, 165, 166. as applied to underground water, 128, 153. to what time right relates back, 141, 148, 162, 165. to posting notice, 148. where two notices posted, 164. where no notice posted, 165. early Nevada rule, 165. under irrigation codes, 165. to filing application for permit, 174. evidenced by numbers, 174. between rival claimants, 141, 150, 151. INDEX. 597 [References are to Pages.] RELATION, DOCTRINE OF (Continued). forfeiture of lienefit of relation. See Actual Diversion; For- feiture. by failure to post notice. !See Notice of A])propriation. by failure of diligence, 158. See Diligence, by failure to complete works. See Completion of Work, using works abandoned by or belonging to others, 160, 161. RELATION TO GOVERNMENT. See California Doctrine; Colo- rado Doctrine. RELATION TO OTHER A prKOl'KM ATOHS. See Appropriator; Priority, etc. RELATION TO RIPARIAN PHOl'KIKTORS. See California Doc- trine; Colorado Doctrine; Priority; Hijiarian Rights; Settlers, etc. REMEDIES. See Action; rrocecding; Suit. REPAIR. of ditches, 74, sec. 135. ditch owner has duty of, and not landowner, 201, 20.3, 216. ditch owner has right of entry to make, 201, 216. landowner cannot remove support of ditch, 201. landowner may use land in ordinary way though ditch injured thereby, 201, sheep trampling a ditch, 201. where ditch crosses ditch, 201. subsequent claimant must adjust crossing over prior ditch, 201. REQUISITES. of California method of appr()])riatiug, 146. of watercourse, sec. 65. of appropriation arc e(iuiva!cnt to taking possession of water, 139. of notice under early customs, 146. of appropriation by actual diversion, 141. RESERVATION. See Conveyance; Sale. of riparian rights on sale of iaml, 294. RESERVOIR. for speculation, 155. underground, sec. 79. Kansas statute, 134, note, taken on eminent domain, 132. as nuisance, 74. for irrigation, early jtrotection of, IS. injury to, 250. Colorado provisions concerning, 338. water in, or pipes, is personal property, 195. poisoning water in spring or, 250. 598 INDEX. [References are to Pages.] RESERVOIR ( Continued ) . Colorado form of, filing. 418. not built at approprintor's peril, 202. Utah statute concerning, 382. application for permit to huild, 507, 511. RES IPSA LOQUITUR, 201. See Negligence. RETURN OF SURPLUS. necessity for, by riparian proprietor, sec. 220. REVERSIONER. suit by, to protect water right, 302. REVISED STATUTES OF UNITED STATES. See Legislation; Federal Statutes. REVIVAL. of abandoned water right by sale, 263. RIGHT OF ENTRY. ditch owner has, to repair, 216. RIGHT OF PROPERTY. indicated by possession and acts of ownership, 162. RIGHT OF WAY. See Ditches, etc. grant of, over public lands, 20. is essence of ditch right, 192. RIPARIAN LAND. use on non-riparian not allowed at common law, 299. cannot use water to irrigate, under common law, 19. what is, title not the test, 299. purchase of by appropriator, rights on, 93, 94, 191. appropriation on, 93. See Private Land. RIPARIAN PROPRIETOR. See Riparian Rights; Settlers. appropriation by, 33, 92, 94, sec. 50. See Appropriator. alone could divert streams at common law, 8. rights of under early Mexican law, 4. legislation of California upholding, 34. relation of appropriator to, 76. See California Doctrine. '.California doctrine protects if prior in time, 77, 78. •tJolorado doctrine rejects rights of, 78. United States as, 50, 62. 294. -change by appropriator inj\iriiig, 215. •estoppel of, 303. apportionment anioiu', in times of scarcity, 207. jjurchase from, by approjjriator, 93, 94. appropriation by, great advantage of, 101 adverse use against, 303. RIPARIAN RIGHTS. See Common Law; Settlers, etc upheld in nine States, 37. rejected in seven States and Territories, 37. INDEX. 599 [Eeferences are to Pages.] RIPARIAN RIGHTS (Continued). in suin-ciiie court of United States, 37. statement of doctrine, 12, c. XTTI. practicability of in West: whether hostile to irris;ation, 28 et seq. under ("aIiforni;i doctrine, tliouf^ht heneficial, 29. under Colorado doctrine, thoujrht inimical, 28. not adapted to new or rough regions, 31. in arid States impracticable, 28. strength of feeling involved, 29, 30. unsuited to pioneer conditions, 5. irrigation is a reasonable use under riparian rights, 291. under Colorado doctrine, rejected in tnto: hostility to riparian rights, 28. rejected under, 37, 5.5, 78. States following Colorado doctrine, 37. under California doctrine, protected, 77. States following California doctrine, 37. protected on constitutional principles, 3.5, 62 et seq. appropriation and common law stand side by side, 36. are independent, 12. are not blended into one, 7. appropriation is not deduced from riparian rights, 12. not affected by repeal of Civil Code of California, section 1422, 36, 320. relation between appropriators and riparian proprietors: priority governs, sec. 33 et seq. subsequent settlers subject to prior appropriation, 76. prior settlers have riparian rights, 78, 291/ where riparian rights attach. See Settlers. to Mexican grants, 35, 80. riparian rights of cities, 95. lakes and ponds, 294. mining claims, 33, 80. on interstate streams, 118. to sub-flow of stream, 118. mere possession of public land, 81. in specific localities. See Rivers, before Lux v. Haggin: decisions upholding, 33. thought rejected in California, 33. Civil Code of California concerning, 34. upheld in Nevada, 34, 359. as affected by irrigation codes: previously a('(|uir(>d, remain, 42, 43. rST>EX. Ks are to Pa^es.] RIPARIAX EIGHTS (Continued). cannot be acquired thereafter. 43. nature of riparian right: not an easement, but parcel of land. sec. 209. whether a matter of local law, 65, note. whether hostile to irrigation. 29. foundation of right. 7. S. onlT riparian proprietor can divert stream under, S. riparian proprietor owns bed to middle of stream. S, 293. need not merge with appropriation, 93. a natural right. 292. passes ifMio facto on sale of land, 292. warranty deed of land warrants. 292. is usufructuary, 293. right to fish, 293. title to bed of stream, 293. contracts concerning, 293. > severance from land. 293. ITnited States as riparian proprietor, 294. riparian right* and nndergrouud water. 294. in underground streams. 294. landowner's right to percolating water. 294. ownership of corptix of percolating water. 295. natural uses under the law of, 296. household use. drinking, watering domestic animals under law of, 296. may take whole stream for natural uses, 296. artificial uses under riparian rights. 296. irrigation and running machinery, 296. what is reasonable quantity for. a question of fact. 297. frontages of stream not measure of, 297. determination of amount for irrigation under, 29S. apportioning in times of scarcity under, 298. apportionment by time. 29S, 299. apportioning percolating water; 299 riparian right cannot be used on non-riparian land, 299. cannot irrigate non-riparian land. 299. what constitutes riparian land a question of fact, 299. title to land not test of being riparian, 299. taking water beyond watershed, 299. return of surplus by riparian owner, 300. reasonable manner of use under riparian right, 300. no waste, 300. pumping water, 300. pollution, SOL , , INDEX. 601 [Befe. e-ce3 are to Pages.] RIPARIAN RIGHTS (Continued). necessity of damage for injunction, 301. injunction to riparian owner who is not using water, 301. loss of riparijin right. 302. remain though water put to no use, 303. adverse use of, 303. estoppel or prescription below against upper riparian owner, 303. eminent domain, 304. loss of, by natural causes, 304. constitutional provisions hostile to, 63. legislation hostile to: Arizona, 41, 334. Colorado, 335. Idaho, 339. Nebraska, 348. Nevada, 354. New Mexico, 361. North Dakota, 363. Oklahoma. 367. iSouth Dakota, 373. Utah, 378. no riparian rights in artificial watercourse, 196. reasonable use under, 222. riparian rights recognized in one State practiced on whole in- terstate stream. IIS. riparian rights of United States. 50, c. II. RIVERS. See Streams; Watercourse, navigable, may be appropriated, 116. Truckee river, 117. San Gabriel river, 128. Walker river, 117. Yuba river, 149. Jackson creek, 264. Kern river, 34. overflow of. from mining debris. See Debris, interstate. See Interstate Streams, drained by mines, 231. SALE. See Appurtenance; Conveyance; Deed, etc. formalities on sale: must be in writing within statute of frauds, 180. parol evidence to prove, effect of, 1S5. must be recorded, ISO. complete on deed and delivery of possession, ISO. 602 INDEX. [References are to Pages.] SALE (Continued). under irrigation codes approval of State Engineer some- times required, 181. effect of sale: does not mean delivery of any specific quantity of water, 83. change of use on sale, 219. does not cause loss of priority if in writing, 164. causes loss of priority it parol, 185. of surplus one does not need passes nothing, 181. of water right in parts, 180. no revival of abandoned water right by sale, 263. riparian right passes //wo facto with land, 292. right of suit by grantee for diversion antedating sale, 180. in particular cases: on partition between tenants in common, 92, 240. by homestead claimant before final proceedings, 179, on execution, 180. on foreclosure of mortgages or liens, 204. by Indians, 179. of water right separate from land, 181. appurtenances passing on sale, 181, 203. See Appurtenance. water may be appropriated for sale, 155. water appropriated for sale is an article of commerce, 195. of land as affecting water right, 21. See Appurtenance, etc. SAN GABRIEL EIVER, 132. SAN JOAQUIN RIVER. 116. SAN EATAEL. water supply of, 229, note. SATURATION. See Percolating Water, plane of, of underground water, 132. land saturated with water, 132. SAWMILL. injury from^ 223. pollution by, 235, 238, note, change of use from, to grist-mill, 219. appropriation for, 17, 74. SCARCITY. See Preferences; Quantity, in times of, apportionment of water, 75. pro-rating under irrigation codes in time of, 207. apportioning among riparian proprietors, '201. SEASON. See Preferences; Quantity, etc. dry season, 207. irrigation in, 207. crops and underground water in, 226, 231. appropriation during, 73. INDEX. 603 [References are to Pages.] SEASON (Continued). irrigation season, appropriation ilurin^, liOfi. of high water, damage in, 202. SECOND-FOOT. See Measurement of Water. SEEPAGE. See Percolating Water. caused by l)urro\ving animal, 203. tunnel diverting seepage from stream, 226. damage from, 201. from diteli, whotiier waste, 191. through lied ami banks of stream, 129. seei>age tunnel tai)ping saturated bed of stream, 132. SETTLERS I'PON Pl'BLTC LAND. See California Doctrine; Pub- lic Lands; Riparian Rights, etc. injury to, by appropriators, 20. agricultural settlers in mining regions, 77, note, rights of prior settlers: under California doctrine, have riparian rights. So, 77, 78. under Mexican grants, 80. after patent to land, 80, sec. 3.5. before patent to land, sec. 36. protected from entry in land office, 80. mining claim has riparian rights, 80. no riparian rights from naked possession, 81. being first in time, are first in right, 79. must return surplus for subsequent appropriators, 79. under Colorado doctrine, have no water right if they do not appropriate, 78. subsequent settlers have tenements of their own selection, 8. take subject to prior appropriations, 76, 143, sec. 33. prior appropriations expressly excepted out of patent. 77, note, railway grants, 76. homestead, 76. mining claims, 76. have, under California doctrine, riparian rights in surplus over prior appropriations, 78. settlement on public land not per se an appropriation. 37. sec. 87. diligence required of, in applying water to irrigation. See Future Needs, right of, to percolating water, lol. See Percolating Water. SEVERANCE. of water from natural stream, 83, 270. of water right and channel by sale, 84. of riparian right from land, 293. 604 INDEX. [Ref6re;-ces are to Pages.] SEWAGE. city, injunction against, 301. SHAFT. See Mining. SHEEP. trampling a ditch, 201. defiling a stream, 250. SHIFTING OF STREAM. from natural causes, 85, 304. SICKNESS. prevention of work by, 156. See Diligence. SILENCE. does not forfeit right, 284. raises no estoppel, 285. SLUICE MINING. pollution by, enjoined, 236. SNOW. prevention of work by, 156. See Diligence. water from rain or melting snow, 115. damage from melting snow, 202. SOIL. water infiltrating through, 129. SOUTH DAKOTA. enforces common law of riparian rights, 36, 37. statutes of: declaration of State ownership, 373. concerning riparian rights, 373. administration, 373. determination of existing priorities, 274. method of appropriating, 374. measurement of water, 375. miscellaneous provisions, 375. SOUTHERN CALIFORNIA. peculiar geological conditions connected with underground water, 113. where percolating water of importance in, 133, tunnels developing water in, 230, note. SOVEREIGNTY. over public lands. See Public Lands, etc. SPECIFIC PERFORMANCE. See Contract; Equity. of parol contract, part performance, 183. SPECULATION. reservoir for, 155. appropriation for, is not allowed, 155, 163. buying up rights for, will not support injunction, 244. tXDEX. 005 [References are to Pages.] SPRING. See t'oreolating Water; WatercouiHe. pipinpf otf, i'AO, ilitching to very innntli nf. ]'M). tunnels drying up, IHO. water from, is watercourse, 130. water from, 114. diversion of percolations from, 226, 229, note, drained by mine, 227. foulinjj water in, is a crime, 2.^0. SQUATTER. water riglit of, 187. STAMP-MILL. See Mining;. tailings from, injunction, 238. STATE. See California Doctrine; Colorailo Doctrine; United States, jurisdiction of, over waters, Zo. waters as property of, 60, 68. own swamp lands, 98, 121. suit in one, for diversion in another, 119, 240. power to change law of waters, 62. ditch lying in two States, 194. over interstate streams. See Interstate Streams. National Irrigation Act subordinate to, 43. organization of, for administrative purposes. See Administration, jurisdiction of, compared with that of United States: derivation of rights from, instead of United States-Colorado doctrine, 55, 163. declaration that waters are property of State, 335, 339, 353, 361, 373, 378, sec. 173. derivation of rights from United States-California doctrine: not derived from State, 51, 54. legislative power of, over waters, 67. police power is proper field, 54. constitutional limitations on, 54, 65. early policy of, in ('alifornia, 10. State constitutional provisions aflfectiug common law, GO. appropriations on State lands, 98. swamp lands, 9,>. States enforcing riparian rights, 36, 37. States rejecting riparian rights in into, 37. States providing for irrigation districts, 46. States having irrigation codes, sec. 20. States having constitutional provisions affecting common law. 60. separate rule for separate parts of State, 135. appropriation in one for use in another, 118. 60G INDEX. [References are to Pages.] 3TATE (Continued). suit by, as parfiis imtiiac, 241. suit against, for diversion, 241. STATE ENGINEER. See Administration, legislation desired by, 40, note, appeal from decision of, 171. examination by, of actual use, 174. necessity for approval of, on sale of water right, 181. discretion of, 171, 173. ^ indorsement of, on application, 171. determination of priorities by, 2o(, sec. 179. examination by, 171, 173. preparatory steps in determining priorities by board or, sec. 179. association of State Engineers, 40, note, notice of investigation by, 257. recording all papers in general with, 171. recording application in office of, 171. notice of, survey by, 280. fees of: Colorado, 424. Idaho, 345. Nebraska, 351. Nevada, 462. North Dakota, 365. Oregon, 371, Utah, 383, 489. STATUTES. See Federal Statutes; Irrigation Codes; Legislation; and under names of individual States, constitutionality of. See Constitutional Law. prevail over customs or decisions, 26. territorial as well as State sanctioned by Act of Congress, 26. hostile to common law. See Legislation, etc. Arizona only statute naming and rejecting riparian rights, 41, 334. of arid States. See And States; Irrigation Codes, etc. forfeiture for non-compliance with, 141, 272. See Forfeiture, for specific purposes. adopting common law in California (Act of April, 1850), 6, 11, \A, 16. adoi)ting customs of miners in California, 6, 11, 13. establishing irrigation codes. See Irrigation Codes, establishing irrigation (listricts, 44, 325. Sec Irrigation Dis- tricts. for adjudicating existing priorities, purely statutory, 257, 261. INDEX. 607 [Befeorences are to Pages.] STATUTES ( Continued ) . for eminent domain — constitutionality of, 286. See Eminent Domain. prohiliit iiifi^ ni()ii(>[)olies, not apply to appropriation, 206. fixinjj miner's inch, 148. See Miner's Inch. registry acts. See Kccordinj^. particular acts: National Irrigation Act, 43, 311. Wright Act. See California. Indemnity Act. See California. Carey Act, 310. recent statutes: legislation of 1905, 39. chiefly administrative, 39. essentials, of, 40. scope and purpose of, 331 et seq. statutes of United States, 19, 52, 55, 63, 97, 223. See Federal Statutes. Arizona, 334. California, 26, 310, Colorado, 335. Idaho, 339. Kansas, 346. Montana, 347. Nebraska, 348. Nevada, 353. New Mexico, 3G1. North OaKota, 363. Oklahoma, 367. Oregon, 370. Philippine Islands, 410. South Dakota, 373. Texas, 3/7. Utah, 378. Utah Irrigation Code in full. 384. Washington, 406. Wyoming. 407. STATUTE OF FRAUDS. See Parol. Sale. contract to furnish water at all times. 204. contract not to be performed within year, 204. parol sale, 183. requires writing on sale, 180. and possessory rights on public domain, 184. applies to conveyances of water rights. >^S. 143. part performance, in equity, l.'-i."^. 608 INDEX. [References are to Pages.] STATUTE OF LIMITATIONS. See Adverse Use. concerning land, applies to water right, 88, 180. not run against United States, 140. STEALING WATER. See Crimes. STOPPAGE OF USE. See Interruption. temporary, 74. STRANGLES TO SUIT. See Parties; Suit. rights of, cannot be considered, 106, 161. STORAGE. See Reservoir. STREAMS. See Rivers; Sub-tlow; Watercourse, what constitutes, sec. 6,5. See Watercourse, intermittent streams, 124. navigable, rights in, 116, sec. 66. may be appropriated, 116. State owns bed of, 116. interstate streams. See Interstate Streams. State boundaries no barriers to appropriation of, 117. conflict of laws, 118. may be appropriated, 118. in one State for use in another, 118. regardless of declaration that State owns waters, 119. note, riparian rights on, protected in all States, 118. suit in one State for diversion in another, 119. quieting title to rights on, 119. original jurisdiction of supreme court of United States in case of, 119. underground supply of. See Percolating Water; Sub-flow of Streams, etc. percolations feeding, diversion of, 130, 226. tunnel cutting oif supply of, 129, 230. diversion of ground water drying up stream, 226, restoring amount diverted prevents injunction, 242. drying up in summer, 304. bed of, title to, 293. See Channel, frontage on, 297. See Riparian Eights. whole stream, appropriation of, sec. 142. See Quantity of Water, ceasing to flow, 267, 304. underground streams. See Underground Streams, mere settlement on banks not per sc an appropriation, 127. pollution of. See Pollution. defiling by herding sheep, 2.50. depositing tailings in, 236, note, muddying stream, 236. INDEX. GOO I References are to Pages.] STREAMS (Coiitimu'd). water from ditch emptying into, 218, 272. obstructions in, 255. water severed from, is personalty, 270. SUB-FLOW OF STREAMS. «ee Percolating Water; Underground Water, defined, sec. Tu. a valuable portion of stream, 126. percolating from stream, IbO. recognition of, at law, 125. velocity ot, 1.^6. is part of stream, 126. evidence of, 126. pioneer case, 126. appropriation of: may be appropriated, sec. 76. by a tunnel, 12?, 128. appropriation of stream is appropriation of sub-flow, 127, priority governs, 127, 129. notice of appropriation of, 128, 413. doctrine of relation applied to, 128. rights of surface claimants to: right of riparian owners to, 127, 128. prior surface claimants have better right, 128. diversion of: mine shaft withtlrawing, 230. subterranean tapping of stream, 127. by tunnel, 127. uncertainty of damage, 129. restoring amount diverted prevents injunction. 242. SUBMERGED CANYONS. basins holding underground water, 133. SUBSEQTTENT APPROPRIATOR. See Appropriator. SUBSEQUENT SETTLERS. See Ai)pro})riators; Settlers. SUB-SURFACE DAM, 132. SUBTERRANEAN WATER. See Underground Water. SUCCESSIVE APPROPRIAT0~RS. See Appropriator. relation between, 81, 70 et seq. SUCCESSOR IN INTEREST. 184. See Sale. SUIT. See Action; Parties, etc. jurisdiction of Federal courts, 241. by State as parens patriae, 241. against State for diversion, 241. Water Rights— 39 610 INDEX. [References are to Pages.] SUIT (Continued). original jurisdiction of supreme court of United States, 241. in one State for uiversion in another, 119, 240. where ditch lies in two States, 194, 240. in one county for diversion in another, 240. where ditch lies in two counties, 194, 240. for adjudicating priorities, in whose name brought, 259. See Adjudication, for specific performance, parties to, 183. See Equity, to determine rights of many claimants on stream, 246. See Ap- portioning; Quieting Title, rights of people not parties to, cannot be set up, 106, 240. by tenant in common, 240. partition, 240. against stranger, 240. by reversioner, 302. by landlord against stranger, 240. by tenant against stranger, 24U. SUMMER. See Quantity of Water; Season. streams drying up in, 207. SUPERVISION OF APPROPRIATORS. under irrigation codes. See Administration. SUPPORT. for ditch, 201, SUPREME COURT OF UNITED STATES. latest expression of, on appropriation, 67. (See Footnote.) original jurisdiction of, in case ol interstate stream, 119, 241. California doctrine applied by, 37. and possessory rights, 184. SURFACE WATER. diffused, sees. 64, 69. underground water compared with, 124. surface drainage, 115. in surface watercourse. See Streams; Watercourse, diffused, owned by landowner, 120. diffused, cannot be appropriated, 120. SURPLUS. See Appropriators. riparian rights in, over prior appropriation, 78, 291. sale of, one does not need, passes nothing, 181. no riglits to, one does not need, 161, 181. NOTE. — The latest expression of the supreme court of the United States will be found in CUirk v. Nasi), 198 U, S. 361. That volume had not appeared at the time this book went to press. INDEX. 611 fReferences are to Pages.] SURPLUS (Continued). no adverse use from use or. against ri]):irian owner, 303. appropriation of, over rijiarian rights, 291. use of, not adverse, 28U. measured by time, 72. See Periodical Appropriation. SURRENDER. and admittance, 265. SURVEY, 157, 163. notice of, by State Engineer, 258. by division superintendent, 257. departure from line of, 162. SUTRO TUNNEL. w^ater from, 196, note, 197. SWALE, 115. SWAMP LANDS. See Reclamation District. owned by State under Arkansas Act, 98, 121. reclamation districts for drainage of, 44, 122. discretion of board of supervisors in organization of reclamation district, 123. TACKING. by appropriators, 160. TAHOE, LAKE, 117. TAILINGS. See Debris; Mining; Pollution. not a nuisance per se, 236, note. dependence of mining on use of streams for, 236, note. channel as a natural outlet for discharge of, by miners 236. prior right to rush, in ditch, 2.-59. priority sanctioning rushing across land in a ditch, 238. depositing in streams, 236, note. power company interfered with by, 238. protection of prior appropriator against, 236, note. prior location of land for depositing, 238. protection of tail-race, 235. from stamp-mill, 238. from sluice mining, 266. from hydraulic mining. See Debris. pollution of stream by, 235. See Pollution. TAXES. payment of, for adverse use, sec. 202. burden of proof, 282. payment of, as influencing abandonment, 274. TEMPORARY APPROPRIATION. See Appropriator. ceases ipso facto, 74, 164, 168. during temporary stoppage of prior appropriator 's use, 74. 612 INDEX. [References are to Pages.] TEMPORARY APPROPRIATION (Continued). between commencing and completion of another's wo.'k, 73. 150. during another's construction work, 73, 151. temporary non-user, 267. when can be made, 150, 154, 267, 2f 5, sec. 31. TENANT. See Landlord and Tenant. no tenancy can exist in water rights, 89. TENANTS IN COMMON. partition suit between, 2^40. suit by one against co-tenant, 240. suit by one against stranger, 240. appropriation by, 180, 24^7, see. 49. TENEMENT. See Easement; Lands, etc. TERRITORY. See State. power of, to legislate upon waters, 26, 67. jp'ederal statutes sanction laws of, 67. corporation formed under laws of, may appropriate, 95. TEXAS, statutes of, 377. enforces common law of riparian rights, 37. THIRD PERSON. See Appropriator; Parties, rights of, cannot be set up. See Suit, tortious act of, cannot cause abandonment, 267. tunneling by, non-user resulting from, 267. TIME. See Abandonment; Forfeiture, reasonable time: failure to use water in, is abandonment, 210. See Aban- donment. difficulty of rule, 269. for clearing out ditch, 205. for actual application of water to use, 165, 210. for future needs, 210. See l<'uture Needs. lapse of time, 275. length of, for adverse use, 279. for beginning work, 146, 172. for actual application of water to use. See Actual Application. fixed in decree of court, 213. See Adjudication of Priority. limit of non-user under irrigation codes, 277. time fixed in permit to appropriate, 213. times of scarcity. See Apportionment; Preferences; Scarcity. under irrigation codes, 208. under common law of riparian rights, 298. apportionment in, 75, 208, 246, 247. INDEX. 613 f References are to Pages.] TIME (Continued). appropriation measured by, 'i2. See Periodical Appropriation. by months, days, or parts of days, 73. See Season, future needs must be in view at time of appropriating!;, 213. TITLE. date at whicii accrues by relation, 141. quieting, to rights on interstate stream, 141. to bed of navigable streams is in State, 116. in place of intended use not needed, 91. of United States to public lands. See Patent; Public Lands; Settler. of ditch owner to water in artificial watercourse, 195. quieting, to underground water, 246. and adverse use, 278. to land, not test of being riparian, 299. parol sale confers none, but subsequent use is an appropriation by grantee, 187. evidence of parol sale inadmissible to prove, 187. equitable, to water rights, 183. to bed of stroani. riparian proprietor's title, 293. by prescription. See Adverse Use. TOWNS. See Cities. TOWNSHIP PLAT, 516. TRANSFER OF WATER RIGHT. to use on different lands. See Place of Use (Change of), under irrigation codes, 86. on death of appropriator, 143. application for, form of, 443. notice of, form of, 447. TREATY. Guadalupe Hidalgo, 50. TRESPASS. appropriation cannot be initiated by, 106. upon rights of riparian owners. See Riparian Rights. appropriation by, rights of strangers cannot be raised, 161. on land of settlers. See Settlers. entry to repair not. See Repair. putting trespassers off one's property, 249. water appropriated by, does not become appurtenant to land, 182. necessity no defense to action for, 244, TRIBUTARIES. appropriator can coinplain of diversion of, 84. TRUCKEE RIVER. 117. j8U im)EX. [Eeferences are to Pages.] TUNNEL. See Mining; Percolating Water, etc. appropriation or sub-flow of stream by, 127. tapping saturated bed by, 132. appropriation of underground water by, 128. seepage tunnel, 129, 130. right to develop water by, 132. drying up springs, 130. Southern California tunnels, 133. diverting sub-flow of stream, 224. diverting percolation above stream, 226. collecting percolations for commercial purpose, 229, note, by third person, causing non-user, 267. Sutro Tunnel, 196, note, 197. UNCEETAINTY. of damages in cases involving underground water, 129. UNCONSTITUTIONAL. See Constitutional Law. UNDEEGEOUND WATEE. See Percolating Water, percolating water. See Percolating Water, underground streams. See Underground Streams, sub-flow of streams. See Sub-flow of Streams, rights of landowner to, 246. pollution of, 239, note, quieting title to, 246. new rule of, 129, 130, 131, 225, sees. 72, 80. whether right to, depends on actual use, 246. in Southern California, 133. and public policy, 135. compared with surface water, 124. new rule favors irrigators, 135. volume of, in underlying gravel, 126 appropriation of, 129. notice of appropriation, 152, sec. 95. dicta in Katz v. Walkinshaw, 131. doctrine of relation applied, 128. right to, is' usufructuary solely, 153. underground reservoir, sec. 79. See Percolating Water. catchment basin, 132. Kansas statute concerning, 134. may be taken on eminent domain, 132. underground lake, 132. UNDEEGEOUND STEEAMS. See Sub-flow of Stream; Water- courses, etc. rights in, 133, sees. 73, 213. INDEX. ens [References are to Pages.] UNDERGROUND STREAMS (Continued). may lie api>roj)riatearian rights in, 294. UNINTERRUPTED. See Adverse Use. adverse use must i)e, 282. UNITS OF MEASl'REMENT. See Measurement of Water. UNITED STATES. See S'tate. or grantee of its land still owns channel, 84. or State, 54. See California Doctrine; Colorado Doctrine. holds land like private person, 50. California doctrine rests on grant from, 5o. grantee of. See Public Lands; Settler. supreme court of. See Supreme Court of United States. or State, relation of appropriator to, 8, 14. no prescription against, 108, 140. as sole riparian proprietor, 62, 68. silent acquiescence of, 97. as original owner of land and water, 50, 51, 79. statute of limitations not run against, IDS, 140. rights of, to waters, 52, 61 et seq. permitted diversion distinct from land, 51. as riparian proprietor, 294. appropriation as grant from, 294. no adverse use against, 282. statutes of. See Federal Statutes. land of. See Public Lands. * silence and tacit assent of, in early days, 9, 24. National Irrigation Act, 43, 311. USEFULNESS. See Purpose of Appropriation. water must be continuously used for beneficial purpose, 189. abandonment for failure of, 189. water right is conditional, 189, sec. 124. general freedom in manner of use, 189. use by water-wheels, iiumi)s, steam boilers, hydraulic rams, per- mitted, 189. appliances used immaterial, 189. means used indicate amount appropriated, 190. limitations on, under riparian rights, 296. irrigation codes cover all uses of water, 260. whether right to underground water depends on actual use. 246. appropriator for irrigation need nut have immediate use of water, 213. tJ16 INDEX. [References are to Pages.] USEFULNESS ( Continued ) . beneficial use as affecting adverse use, 279. riparian rights remain though water put to no use, 303. USE .OF WATER. See Actual Application; Actual Diversion; Arti- ficial Uses; Manner of Use; Means of Use; Place of Diversion; Place of Use; Purpose of Use; Non-user; Waste, etc. USUFRUCTUARY. riparian riglit is, 293, sec. 210. appropriation is, 61, 153, 163, sec. 38. definition of, sec. 38. underground water; right to is, 1,53, 295. UTAH. common law rejected in, 36, 37. the law of appropriation in, 37, 58. statutes of, 376. declaration of State ownership, 278. concerning riparian rights, 378. administration, 378. determination of existing priorities, 379. method of appropriating, 381. concerning reservoirs, 382. preference and pro-rating, 382. measurement of water, 283. State Engineer's fees, Z83. irrigation district, 383. Utah Irrigation Code in full, 284. forms in use in, 485. application for permit to appropriate, 485, 492. certificate of appropriation, 498. • * etc. See Forms. VALUE. of percolating water, none under old rule, 134. VELOOITY. of sub-flow of stream, 126. VERBAL SALE. See Parol Sale. VIS MAJOR. damage from, 202. and percolating water, 231. VOLUME. of sub-flow of stream is greater than surface flow, 126. subterranean, flowing through underlying gravel, 126. WAIVER. of benefit of relation by failure to post notice, 151. INDEX. 617 [References are to Pages.] WALKEK RIVEK, 117. WARNINO. notice operates as, sec. 92. WARRANTY. See Deed. WASHfXGTON. statutes of, 406. appropriation in, 138. enforces common law, following California doctrine, 37. WASTE. See Abandonment. waste not countenanced, 60, 83. 94, 153, 190, 206, sec. 127. diversion for, is not a beneficial purpose, 190. beneficial use limits purpose, li^O. use limits amount, 190. injunction against, 190. appropriator buying up riparian land must not waste, 191. on change of use, 191. under riparian right, 300. what constitutes waste: spreading out water for cattle to wallow in, 190. ditch causing more loss in transmission than pipe-line not waste, 191. evaporation and seepage from ditch may be, 191. failure to furrow land before irrigating is not waste, 191. legislative definition of waste, 333. abandonment of waste. See Abandonment. water that runs off after use is aoandoned, 264, 270, 271. right of others to appropriate waste water, 48, 196. building expensive flumes to catch, gives no right, 271. where discharged into natural stream, 272. becomes part of stream by accession, 272. change of place of discharge, 218, 272. riylit of others to, by estoppel or prescription, 271. from an artificial watercourse, 270. intent to reclaim or recapture, 270. See Recapture, water in drainage (fitch is abandoned, 270. ceasing abandonment of, 270, 271. water pumped from mine, 197. WATERS. power of United States to deal with, 52. subterranean. See Underground waters, declared jiroperty of public or State, 55. as incident to land. .12. in mining, essential, in early days, 9. 618 INDEX. [References are to Pages.] WATEE COMMISSTONEES. See Administration, under irrigation codes, 254. in (Jalifornia, 324. WATEECOURSE. See Eivers; Streams; Sub-flow of Stream; Un- derground Streams, definition of, sec. 65, what constitutes, sec. 65. channel necessary, ll4. bed and banks, 115. swales, 115. water from rain or melting snow, 115. water from fresTiets, 115. depressions in prairies, 115. tendency to regular flow necessary, 114. usually dry channel, 114, continual flow unnecessary, 115. chance flow, 114. no presumption of flow, 114. water from springs, 114, 130. intermittent streams, 124. sub-flow is part of, 126. See Sub-flow of Stream, taking on eminent domain. See Eminent Domain, navigable, interstate, etc. See Streams. artificial watercourse, sec. 68. See Artificial Watercourse. ■ WATEE DISTEICTS. See Administration, regulation for supervision of, 254, 256. WATEE DIVISIONS. See Administration. superintendents of, under irrigation codes, 253, 258. survey of streams in, 257, WATEEING STOCK. appropriation for, 47. under common law of riparian rights, 296, 297. WATER LKVEL. in wells, 226. inclines toward mine shaft, 231. WATEESHED. taking water beyond, under riparian rights, 299. WATEE SUPPLY, PUBLIC. percolating water for, 229, note. is a ijublic use, 287. parol contract for, 2^04. WATER USEES' ASSOCIATJOX, 314. INDEX. 619 [References are to Pages.] WATEE-WHEEL. current wheel as an appropriation, 160. use of, 72, note, 189. WELLS. level of water in, 226. diversion of percolatinf; water from, 225. landowner's right to dig, 295. appropriation of water by, 131. location of, in Southern California, 133. WHERE AN APPROPRIATION CAN BE MADE. See Place of Di- version. WHERE SUIT CAN BE BROUGHT. See Suit. WHO CAN APPROPRIATE. See Appropriator. WHO CAN SUE. See Parties. WHOLE STREAM. See Quantity of Water. WORK. commencement of, right relates back to, 150. completion of. See Completion. construction work. See Construction Work. delay caused by magnitude of, 146, 149. use of water during, 72, 151. diligence in. See Diligence. WRIGHT ACT. See Irrigation Districts. constitutionality of, 44. adopted in various States, 46. WRITING. See Statute of Frauds. WYOMING. admission ot, into Tnion, ettect on law of waters, 63. statutes of: declaration of State ownership, 407. concerning riparian rights, 4U7. administration, 407. determination of existing priorities, 408. method of a)>pro])riiition. 408. relation, 409. reservoirs, 409. measurement of water, 409. forms used in, 500. application for permit to appropriate, 500. application for permit to enlarge, 503. application for permit to build reservoir. 507. 511. etc. See Forms. %. 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